Legal Studies unit 4

The People and the Australian Constitution Victorian Parliament Commonwealth Parliament
The Australian Constitution: a formal written document setting out the rules and principles Crown Crown
that guide the way Australia is governed, including the nature, functions and limits of government. (Governor) (Governor-General)
Commonwealth of Australia Constitution Act 1900 (UK) Legislative Council Senate
- Establishes Commonwealth Parliament and its structure
- Establishes High Court and its powers Legislative Assembly House of Representatives
- Sets out matter relating to the states and the division of law-making powers Division of powers:
- Outlines referendum process
• Exclusive (s. 51): Commonwealth
Parliament (e.g. defence, currency and border
Role of the Lower House: Role of the Upper House: Role of the Crown:
- Form government - - protection)
House of review Granting royal assent
- Initiate bills - Represent the states’ - Withholding royal assent • Residual (s. 106-108): States’ powers not
Debate legislation interests - Appointing Executive Council mentioned in the Constitution (e.g. road
Represent the people - Scrutinise bills through - Maintaining political laws, public transport)
Provide responsible government the committee process neutrality • Concurrent: Shared by Commonwealth and
Control government expenditure - initiate and pass bills State Parliaments’ (e.g. taxation, marriage)

➡ The McBain Case: While the Victorian State Law provided that in
Section 109 of the Constitution: “When a law of a State is inconsistent with a order to receive IVF treatment a women must be married and living
law of the Commonwealth, the latter shall prevail, and the former shall, to the with her husband, the Commonwealth law provided that it’s unlawful
extent of the inconsistency, be invalid” to refuse a person services due to their marital status. The
- Designed to resolve conflicts and inconsistencies arising under concurrent Commonwealth law prevailed and the Victorian law, to the extent that
powers it was in conflict, was found to be invalid (people could not be denied
- Restriction on state parliaments IVF services on the basis of marital status)
- A state law needs to be challenged by a party with standing before it is declared
invalid by the High Court - costly and risky Strengths Weaknesses

Debate, scrutiny, amendments Rubber stamp: less thorough review

Constitutional checks on parliament
The Bicameral Structure of the Commonwealth Parliament: All proposed laws Upper house reviews bills Hostile senate: obstructionist
must pass successfully through both
Government can initiate laws Can slow the legislative process
houses of parliament before they can
reflecting nations view & values
receive royal assent and become law.

Strengths Weaknesses
Separation of Powers: The ability to control the law is split between 3 No one body holds absolute power to make In reality, the legislative and
bodies: law, administer law, and rule on its legality executive power are combined,
- Executive power: Administer laws and manage the business of
decreasing check on power
government (Cabinet)
- Legislative power: Make laws (Parliament) Independence of judiciary ensures judges Judges are appointed by the
- Judicial power: enforce the law and settle disputes (courts and are not conflicted with interest of parliament executive
tribunals)
Strengths Weaknesses
The express protection of rights: Rights that are explicitly stated and
Protected specifically in the Constitution Very few rights, limited in scope
entrenched in the Constitution, meaning they can only be changed at a
referendum Can only be changed by referendum Other rights can be changed at any
- Right to exercise religion (s. 116) time and can differ b/ween states
- Discrimination on the basis of state residence (s. 117)
Strengths Weaknesses
The role of the High Court in interpreting the Constitution:
- Acts as a guardian of the Constitution: Influences day-to-day application and Judges are independent of Judges can only rule on facts of the
ensures it remains relevant to society parliament and free from case before them, so power to create
- Acts as a check on any abuse of power: Party with standing can challenge a law to political pressures legal principles is limited
the High Court, where it can be declared ultra vires (invalid)
- Gives meaning to the words: High Court must apply the words of the Constitution to High Court judges are very High court is expensive and risky -
a case, considers the facts and decide whether a statute that has been passed is experienced reduces ability of individuals to
unconstitutional. It can also lead to the creation of implied rights challenge laws
The requirement for a double majority in a referendum: The Constitution can only be changed by the strict process of referendum; a compulsory vote on
a change to its wording.

Strengths Weaknesses

Democratic - public has control over any changes Double majority is difficult to achieve - only 8/24 have been successful

Double majority requirement protects smaller states Timely and costly process

Vote is compulsory - ensures the majority of people’s views and values are Results may appear undemocratic if the majority of Australians vote in favour,
considered and represented but it is not passed because a majority of voters in a majority of the states did
not
Voters are provided with relevant information to make an informed vote

Changing and protecting the Australian constitution

The significance of one High Court case and Sections 7 and 24 of the Constitution:
- Section 7: The Senate shall be composed of senators for each State, directly chosen by the people voting as one electorate. There will be six senators for each
Original state
- Section 24: The House of Representatives shall be composed of members directly chosen by the people, with twice as many members as the number of
senators. The number of members chosen in the several States shall be in proportion to the respective number of people in that state.
- Roach case 2007: The Commonwealth Electoral Act prevented people serving a prison term over 3 years from voting in federal elections. In 2006, this law
was amended so that all prisoners were disqualified from voting.
- The High Court found that to have a government that is truly representative of society, a substantial majority of the population must be able to vote
- To disqualify from voting those who are imprisoned for relatively minor offences was said to be excessive, and the amendment was made invalid.
- Significance: Commonwealth retained the ability to determine who can vote, but must ensure representative government by ensuring a substantial
majority of the population could vote, and only removing the ability to vote for ‘substantial reason’.

The significance of one referendum in which the Australian people have changed the Australia Constitution:
Referendums ensure that the Commonwealth cannot change the wording of the Constitution without first seeking the permission of the Australian people,
therefore upholding the democratic principle that respects the right of voters to be involved in any process that would change the way the nation is governed.
- The 1967 Aboriginal and Torres Strait Islander peoples referendum: Until 1967, the Constitution specifically denied the Commonwealth the power
to legislate for Indigenous people in the states or to include them in national censuses. In 1967, it was proposed to remove barriers facing Aboriginal people
from the Constitution, making the authority to legislate regarding Aboriginal people a concurrent power.
- 90.77% of people voted ‘yes’ for the change, resulting in the alteration of section 51 of the Constitution and deleting Section 127.
- Allowed the views of the public to be reflected in constitutional change, and allowed the Commonwealth to spend money on initiatives for
Indigenous Australians

The significance of one High Court case which has impacted the division of law-making powers: The decisions of some High Court cases has
affected the division of power between the parliaments in Australia, with judgements being more inclined to grant additional powers to the Commonwealth and
reduce the law-making powers of the states.
- The Brislan case (1935)
- Section 51 (v) of the Constitution gives the Commonwealth Parliament the power to legislate on postal, telegraphic, telephonic and other like services.
The Wireless Telegraphy Act (Cth) was passed, requiring all owners of wireless sets (radios) to hold a license. The defendant was charged with not holding a
license.
- The defendant challenged the validity of the act, stating that a ‘wireless set’ was not a service in the sense in which that term is used in section 51(v).
- The High Court ruled that ‘other like services’ included broadcasting to wireless sets as they, as well as the other stated services, were ‘communication
services’, and extended the Commonwealth’s power to legislate regarding broadcasting to wireless sets.
- Significance: Resulted in a shift in law-making powers from the states to the Commonwealth with respect to wireless sets. The Commonwealth assumed
control of electronic means of communication, and its laws will prevail under section 109 if there is inconsistencies under concurrent powers. Every time the
High Court finds in favour of the Commonwealth law-making power in cases involving the Constitution, the balance tips further towards the Commonwealth,
reducing the states law-making powers.

The impact of international declarations and treaties on the interpretation of the external affairs power
- The external affairs power: Section 51(xxix) gives the Commonwealth the power to create laws for the peace, order and good government of the
Commonwealth with respect to ‘external affairs’, including the authority to legislate to give effect to international agreements, and to make laws on treaty
topics which are residual powers.
 - International treaties: A legally binding agreement between countries or intergovernmental organisations which is governed by international law.
Ratification of a treaty makes it binding under international law. The High Court can then interpret the statute.
- International declarations: A non-binding agreement between countries which sets out certain aspirations or intentions of the parties to the agreement.
These can be influential in the development of government policy.

- The Tasmanian Dam Case

The Tasmanian Government intended to dam the Franklin River to create a source of hydroelectricity for the states power needs, under their residual
powers. Australian-wide protests occurred as a result, causing the Commonwealth government to seek to intervene in an area of state power under the
stance that it was their duty to prohibit work likely to damage or destroy Australia’s national heritage. The Commonwealth claimed that section 51 gave
them the power to legislate on areas relating to eternal affairs, and that the proposed dam was an external affair because it was covered by World
Heritage listing (an international treaty). The World Heritage Properties Conservation Act 1983 (Cth) was passed to prohibit the construction of the
proposed dam, and the Tasmanian Government argued this was unconstitutional.

The High Court interpreted s51 quite broadly, finding that all areas of Australia’s relationships with other countries, including international treaties such
as the World Heritage List, were included under the ‘external affairs’ power. This increased the law-making power of the Commonwealth Parliament and
reduced state law-making power, meaning the Tasmanian Dam could not be built. The Commonwealth now had the power to legislate in areas of
the residual powers where there is an international treaty/obligation concerning that area.

The People, the Parliament and the Courts

Factors which affect the ability of parliament to make law
The roles of the houses of parliament
- Effectiveness of lower house:
- Majority government:
- Majority in lower house allows government to pass their legislative policies fairly easily (upholds representative gov.)
- Majority in both houses can result in rubber stamping
- Minority government:
- Hung parliament can force government to negotiate with cross-benchers for support - can ensure thorough debate but also force government to
‘water down’ original policies
- This can allow a small group of members to hold a disproportionately large amount of power, and they often do not represent the views and value
of the majority of the community

- Effectiveness of upper house:

- Rubber stamp:
- Government bills are automatically approved as senators vote along party lines - can prevent senate from adequately reviewing legislation or
representing their states’ interests
- Hostile upper senate:
- Government relies on support of cross-benchers to pass bills - can provide more thorough debate and scrutiny of laws, or prevent/obstruct the
ability of government to implement law reform

- The law-making process:

- Strengths: - Weaknesses:
- Allows review and scrutiny by upper house - Bipartisan support can slow the progress of legislative reform
- Debate allows a wide range of views to be considered - Parliament can only pass laws which are presented to it - usually
- Parliament can change law quickly by government
- Parliament only sits for a limited number of days
- The committee system:
- Allows members to examine and evaluate the need for law reform and provide ways for them to have input on the issues
- Extensive committee system allows members of community to input on issues

The representative nature of parliament

- Representative government: Where a government is elected by the people to represent their views and values in parliament, and act on their behalf. This
principle is central to democracy.
- The views of the majority:
- Sections 7 and 24
- Members of parliament may introduce and support laws that are popular with voters rather than introducing more controversial laws that are necessary.
- Members may be reluctant to initiate law reform in areas in which there are highly vocal groups who do not support the changes.
- Regular elections:
- Members of parliament must represent the views of the people, or they will be voted out at the next election
 - Fixed-term elections give government a specific period to implement their programs, but can make them reluctant to implement longer-term reforms
- Compulsory voting ensures government supports majority of Australia’s views and values, but can also force those who are not interested to cast ill-
informed votes.

Political pressures
- Domestic political pressures:
- Individual members of the community, business groups, organisations and pressure groups - particularly those with significant financial power or the
ability to influence community perceptions - can influence members of parliament and government through gaining strong community support and
media attention with demonstrations, petitions and court action.
- However, sometimes small but vocal minority pressure groups and powerful businesses and organisations may place excessive pressure on politicians and
impede important law reform (e.g. anti-abortion activists)
- Internal political pressures:
- Voting along party lines can ensure certainty and stability
- Denial of a conscience vote can detract from representative government
- International political pressures:
- International treaties can improve the quality of domestic laws and encourage stronger relationships with other countries
- Ratifying international treaties can restrict the ability of parliament to make different local laws, or pressure the government to act more in the interest of
other countries rather than Australia

Restrictions on the law-making powers of parliament

- Jurisdictional limits:
- Ensure parliaments can only legislate within their power
- The Commonwealth cannot make laws in areas of residual power unless they are given permission to through: a high court interpretation of the
Constitution, the state’s handing over their powers to the Commonwealth, or a referendum. Other ways include influential tied grants, or international
treaties.
- Allow individuals and groups to challenge legislation potentially unconstitutional. The High Court can declare a law ultra vires, a decision which
parliament cannot override.
- Specific prohibitions:
- Restrict the law-making powers of parliament (division of powers) and indirectly protect individual rights.
- Express rights - e.g. section 116 freedom of religion
- Cannot change wording of constitution unless through referendum (s. 128)
- S. 109 limits state power in concurrent areas of law-making

Factors which affect the ability of the courts to make law

In Australia, Parliament's main role is to make and change law on behalf of the people, while the main role of the courts is to apply existing laws to resolve
disputes, and make law when necessary.

Doctrine of precedent: The common law principle by which the legal reasoning for the decisions of higher courts becomes binding on courts ranked lower in
the same hierarchy in future cases where the material facts are similar.
- Creates consistency and predictability, as parties can anticipate how the law may be applied to their situation, and have some idea of the possible outcome.
Key features of the doctrine of precedent:
- Stare decisis: to stand by what has been decided
- Ratio Decidendi: The legal reasoning behind a judge's decision, and the binding part of a judgement.
- Binding precedents: Precedents which have been established by superior courts and must be followed by lower courts in the same hierarchy
when resolving disputes with similar material facts.
- Persuasive precedents: 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) even though it is not binding.
- Obiter dictum: “a thing said by the way”; comments or statements of opinion made by the judge that may be relevant and persuasive in future
cases (even though they do not form a part of the reason for the decision and are not binding)
Developing and avoiding precedent:
- Distinguishing a precedent: a lower court decides that the material facts of a case are sufficiently different to that of the case in which the
precedent was established so they are not bound to follow it
- 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 set by a lower court in a different
and later case, thereby creating a new precedent which overrules the earlier precedent
- Disapproving a precedent: when a lower court expresses dissatisfaction of an existing precedent but is still bound to follow it. This can encourage
parliament to change the law or the party to seek an appeal to a higher court.
 - Applying earlier
precedents: Most
often, courts will be
required to consider
and apply precedents
set in previous cases.
However, they may still
need to refine the law
and make it clearer.
This allows the law to
expand and develop
over time.

Statutory interpretation: When a court, in order to solve a dispute, must interpret some words, a phrase or a section of a statute to determine the intent of
parliament, therefore broadening or narrowing the meaning of the statute.
Reasons for statutory interpretation: problems can occur as a result of the drafting process (e.g. intention is not clear, word is not defined), or
there can be problems applying the act to a court case (e.g. act may have become out of date)
Effects of statutory interpretation:
- Words of phrases contained in disputed acts are given meaning
- The decision reached is binding on parties
- Precedents are set for future cases to follow
The finality of a court’s decision: A decision made by a court is a final statement of law unless it is reversed by a higher court on appeal, overruled
by a higher court in a different and later case, or abrogated (cancelled) by an Act of Parliament

Judicial conservatism: When judges adopt a narrow interpretation of the law when interpreting acts and deciding cases, preferring parliament, who is
representative of the people, to investigate and make major or controversial law reform.
E.g. In the Trigwell case, the majority of High Court judges refused to move away from outdated precedent relating to a stock-owner not possessing a duty of care
for the damage roaming livestock may cause. Subsequently, it was left to the Victorian Parliament to introduce law reform.
Judicial activism: When judges consider a range of social and political factors, including community views and values and the rights of the people, when
interpreting the law and making social change. While some people believe judicial activism to be ‘progressive’ and necessary to ensure justice, others argue that
judges can go beyond their legislative or constitutional power to expand the meaning of laws beyond the original intention of parliament in attempt to influence
a change in the law.
E.g. In the Mabo Case, judges overruled a long-established common law principle that Australia was terra nullius (‘empty land’) when it was colonised by the
British. In doing so, the right of Indigenous people to have native title over traditional land was recognised, therefore leading to development of the law.
Cost and time of bringing a case to court: Can restrict the courts ability to uphold the principles of justice and to make law, as litigants may be reluctant or
unable to afford to bring a case before the courts, meaning new precedent cannot be made.
The requirement for standing
- A party must have STANDING (locus standi) to pursue a case: they must be directly affected by the issue or have sufficient or special interest, and must stand to
gain a quantifiable advantage if they succeed in the action.
- Courts must wait until a party decides to pursue a case before they can create precedent

The relationship between courts and parliament in law-making

The supremacy of parliament: Supreme law-making body which can confirm or override common law, and can pass legislation to change the jurisdiction of
courts.
The ability of courts to influence parliament: Courts can indirectly influence parliament through judicial activism or obiter dictum.
The interpretation of statutes by courts: can form precedent which becomes common law. The High Court can alter the division of power through its
ability to interpret the constitution.
The codification of common law: Parliament can make law that confirms a precedent set by the courts (e.g. Mabo case - Native Title Act)
The abrogation of common law: Parliament can make law which overrides (abrogates or cancels) or common law, with the exception of High Court
decisions made on constitutional matters

Law reform
Reasons for law reform: Laws must reflect the views and values of the majority of people in a society, and therefore be altered to ensure they remain relevant
and effective.
- Changes in beliefs, values and attitudes: Laws must reflect these changes to remain relevant and accepted by majority of people.
- Changes in social, economic and political conditions: Changes such as Australia’s increasing population (social), increased globalisation (economic), the
increased threat of terrorism (political)
- Advances in technology
- Greater need for protection of the community
- Greater need to clarify, simplify or expand unclear laws

Petitions: A formal, written request to the government to take some action or implement law reform. It is a collection of signatures from supporters, allowing
them to directly put their concerns/complaints before the parliament.
Petitions presented to the Victorian Parliament must:
- be addressed to only one house of parliament
- have a brief explanation of the reasons for the petition
- be presented or tabled in parliament by a local member of parliament

Demonstrations: A gathering of a group of people to protest or express their common concern or dissatisfaction with an existing law as a means of influencing
law reform. They can raise awareness, generate further support, and media attention.

The courts:
- If the parliament has passed a law that is unfair or unclear, the legislation can be challenged through the court system in the hope that a judge will interpret
and clarify the meaning of the law in their favour.
- Laws can also be challenged in the hope that a judge might declare it ultra vires and invalid

The role of the media in law reform

- Social media: The massive scale of social media allows people to share their views and opinions with the entire community in a relatively small amount of
time, and images, videos and live streaming of events can be used to generate great interest in and awareness of legal and political issues and the need for
law
reform.
- Traditional media: Conventional ways of communicating information to the mainstream public, being newspapers, television and radio, that were relied
on before the internet. They have the ability to examine, discuss and inform people about legal and political issues and possible changes to new laws, and to
shape the views and attitudes of their audience depending on the manner in which issues are presented.

The Victorian law reform commission (VLRC)

- VLRC: Victoria’s leading independent law reform organisation, which reviews, researches and makes recommendations to state parliament about possible
changes to Victorian law.
Role: Assist the Victorian Government in continuing to provide a fair, inclusive and accessible legal system by investigating the need for change in
Victorian laws and providing the government with impartial advice and recommendations for change.
- Inquire (recommended by gov)
- Investigate (minor legal issues)
- Monitor
- Educate
- Medical cannabis:
- Victorian Attorney-General gave a reference to the VLRC to examine possible law reform surrounding the growth and use of medical cannabis. The VLRC
accepted submissions and consultations, and tabled the final report in parliament.
- Access to Medical Cannabis Bill 2015 (Vic) allowed for the lawful cultivation of medical cannabis, and allowed some individuals to use it in exceptional
circumstances.

Parliamentary committees: Separate working parties which investigate a wide range of legal, social and political issues and report back to parliament about
the need for law reform. This allows parliament members to examine and evaluate the need for law reform.

The ability of parliament and the courts to respond to the need for law reform