Week 2 – tutorial questions

2. Explain the rule of law. Does Australia adhere to it?

The rule of law is that everybody is subject to the laws and that no one should get a free pass just
because of status, everybody should adhere to the law in Australia, even police, government
officials, judges and so on. The rule of law states that one is innocent until proven guilty, also police
are not allowed to detain or arrest you without a good reason.

2. Discuss the significance of the separation of powers doctrine and compare it to the division of
powers doctrine.

The doctrine of the separation of powers is an important principle in Constitutional law. The
separation of the legislature (parliament) is the power to make laws, they consist of the house of
reps, the senate and the queen. The executive is the power to administer the laws (courts) which is
the queen. And the judiciary (public services) is the power to interpret and enforce laws that is
constructed through the Commonwealth of Australia.

The division of powers is divided into three categories. The exclusive powers, these are granted only
by the commonwealth constitution and the federal parliament. The concurrent powers, this is
shared with the commonwealth and the state and lastly the residual powers which is only granted by
the state. If one person is having all these powers, they might abuse them which is why they are
divides to minimise risk.

3. What are the main differences between the legal systems used in civil law and common law
countries? Identify at least 2 countries that use civil law and 2 that use common law systems.

The main feature of the Common Law Legal System is that the Judge is the main authority, it is
adversarial, has a legislature and civil case. It involves a judge and the lawyer and defendant gather
evidence and call upon witnesses. Some of the countries common law is used in is the united states,
Australia and the United Kingdom. Civil law is inquisitorial and non-adversarial, the judge will carry
out the investigation, find evidence, present witnesses etc. Civil law courts base their judgements on
codes and statutes and forms the legal systems of Japan, France, the middle east and Indonesia.

4. To meet its Kyoto Protocol target of reducing greenhouse gas emissions, the Commonwealth
government decides to draft legislation to ban land clearing. Gino, a farmer in New South Wales, is
worried that he will not be able to clear the forests on his land to extend his grazing land if the
laws are enacted. He says he has read the Constitution and there is nothing in it about land
clearing or greenhouse gases. He also says even if the Commonwealth has the power it should not
be able to stop him using his land as he chooses. Can the Commonwealth stop Gino from using his
land as he pleases? Consider the powers of the Commonwealth government and what you
consider to be Gino's rights over his land.

Technically the Commonwealth could control what he does with his land because of external affairs.

5. Explain the most significant legal changes created by the Australia Act 1986 (Cth).

Australia became independent from England and recognises Australia’s independence.

6. Explain why s 109 of the Australian Constitution is needed.

In the Australian division of powers, there are some areas on which both the federal government
and state governments can legislate, these are called concurrent powers. Because the state and
federal legislation in these areas are not always the same, it is necessary to have a rule to decide
which law is followed if they contradict one another. S109, called the inconsistency rule, highlights
that if this were to happen that would mean you would follow the federal law over the state law.

7. Summarise changing the constitution.

the proposed amendment is passed by an absolute majority in the house of reps and the senate. The
governor general then issues a referendum to be held in the next 2-6 months on a Saturday, the
people of the nation would vote yes or no, with the majority vote winning.