Unit 3, Area of Study 1: Parliament and the citizen Outcome 1

Principles of the Australian parliamentary system Representative government The elected government must represent the views of the people within its electorate and act on their behalf. This is achieved through regular elections, which allow the people to vote politicians into office to represent them in parliament. If the elected members are not representing the views of the people who voted for them, they will be removed from office at the next election. Responsible government Government is answerable and accountable to parliament, and therefore the people, for its actions it must act fairly and responsibly. This is achieved through such devices as question time, debates and parliamentary committees. Having the support of the Lower House therefore chooses the government and if the government loses the confidence or support of parliament, then it must resign. Further, the doctrine of ministerial responsibility means that ministers are responsible to the parliament, and therefore the people, for their actions and decisions. Ministers are also responsible and accountable for the actions of their government departments (portfolios). For example, the Minister for Public Transport is responsible for the actions of the Department of Transport. Members of parliament are given an opportunity to question ministers about their activities and the activities of their departments. The separation of powers There are three main functions to be performed within a legal and political system to ensure the effective operation of the country. The doctrine of the separation of powers states that the three different types of power held by the Commonwealth must be exercised by different bodies and kept separate so that no one body has absolute power, and no one branch can control or interfere with the operation of another branch. However, each branch acts as a check on the others.

Legislative Power
The power to make laws Exercised by Parliament

Executive Power
The power to implement and administer the laws Exercised by the Governor-General on the advice of the government. Therefore, it is largely exercise by the government.

Judicial Power
The power to enforce the law and settle legal disputes Exercised by the Courts.

Some Powers overlap Governor General is part of both parliament and the executive Some members of parliament are also members of the government Parliament delegates some law-making powers to government departments and Executive Council

The Judicial power is kept completely separate courts are independent of political pressure and influence, which is necessary to retain confidence in the legal system. Commonwealth Parliament Governor-General is the Crowns representative The House of Representatives The Lower House of the Commonwealth Parliament Made up of 150 members, each representing an electorate of around 80,000 voters. Therefore, the physical size and number of electorates varies from state to state (minimum of five members of House of Representatives from each state) Members are elected for three year term The Senate The Upper House of the Commonwealth Parliament Made up of 76 senators, with 12 senators elected from each state and two from each territory. Thus, states have equal representation regardless of their population. Senators are elected for a six year term

Victorian Parliament Governor is the Crowns representative The Legislative Assembly The Lower House of the Victorian Parliament Made up of 99 members. Each electoral district elects one member to represent them in the Victorian Parliament Members elected for a four year term The Legislative Council The Upper House of the Victorian Parliament Made up of 44 members, with eight regions each returning five members Members elected for a four year term

Roles of the Federal Houses of Parliament The main roles of the Federal or Commonwealth parliament includes: Making laws for the peace, order and good government of the Commonwealth of Australia Providing for the formatting of government and the checking of its actions Representing the people of Australia Establishing parliamentary committees to investigate issues. These can be standing committees (long-term committees that continue to exist, even with a change of government), select committees (committees set up to investigate a specific issue) or joining committees (committees that include members from both houses of parliament). Lower House The House of Representatives - Makes laws - Seat of government - Represents the people - Publicizes and scrutinizes government administration - Controls government expenditure Upper House The Senate - States house - House of review - Initiation of Bills Roles of the Victorian Houses of Parliament Lower House- Legislative Assembly - Initiates most bills - Determines the seat of government - Represents the people - Publicizes and scrutinizes government administration - Controls government expenditure Upper House Legislative Council

House of review Initiation of bills (except money bills)

Role of the Crown As Australia is a constitutional monarchy, we retain the British monarch or crown as our head of state, although the framework of our legal, political and parliamentary systems is determined by the Commonwealth Constitution. The Crown is represented in Australia by the Governor General at federal level and respective governors at state level. The Queen and the Commonwealth constitution grant certain powers to the Crown such as: - Giving royal assent to Bills - Dissolving the Parliament and issuing writs for new elections - Officially commissions the Prime Minister/Premier and appoints other ministers after elections - Officially opens and closes parliamentary sessions. - Acts on the advice of ministers through the Executive Council to issue regulations and proclamations. - The Crown can overrule or disallow any Commonwealth law within on year of it being given Royal Assent (s.59 Constitution but it has never been used). Changing the law Why laws may need to change Changing values and attitudes in the community The social, moral, economic and political values of society should be reflected in the law. Values and attitudes change in areas such as the status of women, acceptance of alternative domestic relationships and the environment. For examples, the growing acceptance of de facto and samesex relationships in society led to the passage of the Relationships Act 2008 (Vic.), which established a register or the registration of domestic partnerships for people in a committed relationship, regardless of their gender. These couples are sued with a certificate that recognizes their union. Rights of same-sex couples with children were also extended by the Assisted Reproductive Treatment Act 2008 (Vic.), which gives legal recognition to non-birth parents for their partners children, so lesbian couples are able to have both of their name listed as parents on their children birth certificate. Technological advances The Crimes Amendment (Identity Crime) Act 2009 (Vic.) Was passed to comprehensively criminalize identity crime. Further, it allows for victims of identity crime to obtain a court certificate to assist them in remedying the effects of the crime. Changes in technology necessitate constant changes in the law as new areas of law or offences develop E.gg the growth in new technologies and Internet use in Australia has resulted in Internet crime being one of the fastest growing crimes in the world. Changes in society Protection of the community

Victorian Law Reform Commission When deciding on areas of law requiring review or change, a parliament may refer the matter to a formal law-reform body for investigation. These are specialist bodies that will, at the request of parliament, examine a particular area of law or issue, conduct investigations and inquire into those issues, and then make recommendations for change to parliament. It is important to note that the law-reform body can only advise parliament, and cannot change the law itself. Parliament will decide the extent to which it implements the law-reform suggestions of the law-reform body. Role of the VLRC The role of the VLRC is to research and investigate areas of law reform and recommend changes in the law to the Attorney-General, who tables the commendations in Parliament. The VLRC develops, monitors and coordinates law reform activity in Victoria. One formal law-reform body operating in Victoria is the Victorian Law Reform Commission (VLRC). It was established in 2000 as an independent, government funded organization. Their role is to: - Make law reform recommendations on matters referred to it by the Attorney General - Make recommendations on minor legal issues of general community concern - Suggest it to the Attorney General that he or she refer a law reform matter to the Commission - Educate the community on areas of law relevant to the commissions work - Monitor and coordinate law-reform activity in Victoria

Law reform process of the VLRC Reference is received from the Attorney-General or begins a community lawreform project. The Commissions staff undetake initial research and consultation A Consultation/Issues/Discussion Paper is published, which explains the key issues and provides a basis for consultation.

Submissions are invited from any interested individuals or groups.

Consultations are undertaken with members of the community, people working in the area and other relevant agencies. A report is published with recommendations for changes to the law and presented to the Attorney-General. Parliament decides whether to implement the commendations (in whole or in part) through legislation. The Attorney-General tables the report in Victorian Parliament.

Individuals and groups influencing change in the law These bodies could participate in changing the law either from within the parliamentary system (formal pressures) or from outside parliament (informal pressures). - Formal pressures for change come from within the parliamentary system, such as members of parliament, parliamentary committees, law-reform bodies, cabinet and government departments. These bodies are able to investigate and initiate change in the law. - Informal pressures come from individuals, groups and organizations that are not directly connected with the parliamentary law-making process, but try to influence parliament to change the law by gaining public and parliaments attention to the issue. DIAGRAM pg 14 legal notes

Methods used by individuals and groups to influence change Petitions A petition is a written request to parliament for action, such as a need to change an existing law or to pass a new law. It is accompanied by a collection of signatures that shows the signatories to be concerned about the issue or problem and to support the specific request. Petitions must be presented to parliament, or a member of parliament, for them to be tabled in parliament. They must refer to a matter that is within the power of parliament to address, and contain a request to take action. The more signatures present on a petition, the more successful it is likely to be in influencing change, as it demonstrates to parliament the high level of community support for the issue. E.g. throughout the parliamentary debate on the Abortion Law Reform Bill 2008 a number of petitions were received by both houses of parliament. There are suggestions that the parliament should also accept online petitions. Demonstrations or protests Demonstrations, such as rallies, strikes, marches or boycotts, are gathering of members of the community, held in a public place, that are designed to show their support for a change in the law. They are held to demonstrate the views of the public to parliament, and are more successful when large groups of people attend. For example, thousands of pro-life protesters demonstrated by marching down Bourke Street to Parliament House in response to Victorian Parliaments debate on legalizing abortion in September 2008. Also in 2008, teachers took strike action, protesting for better pay and working conditions. Use of the media The media plays an important role in informing the public and members of parliament on community views in relation to issues of possible law reform, thereby potentially influencing changes in the law. The media may play a part in helping people to form views, as well as reporting on the views of individuals, organizations and pressure groups. Media coverage will often be used in conjunction with other methods, such as demonstrations, by giving them coverage and further alerting members of parliament to the need for legislative change. Media coverage may take the form of: - Television - Radio - Print media - Electronic media Evaluation of effectiveness of methods used by individuals and groups Table pg 16 Legal Notes Examples of recent change in the law Legalizing abortion in Victoria Pg 18 Legal Notes Types of bills Pg 21 Legal Notes

The passage of a bill through parliament Pg 22 Evaluation of parliament as a lawmaker + It is parliaments primary role to make laws. It can therefore devote the majority of parliamentary sitting time to making laws. - Parliament is not always sitting, which means that the passage of important legislation may be delayed during parliamentary recesses. +Parliament is able to make or change laws at any time (providing that it is sitting) and can act quickly as the need arises. It can respond to events, changed in technology or changes in the views and values of society. E.g The Serious Sex Offenders Monitoring Amendment Act 2009 (Vic.) - Because there are conflicting values in society on some issues, it is not always possible for parliament to determine a majority view to represent in legislation. This may result in Parliament having difficulty passing laws in controversial areas, such as euthanasia. +Through the passing of an enabling act, parliament is able to create subordinate authorities to assist with law-making. Subordinate authorities (also called delegated bodies) are given specific powers by parliament to create laws in specified areas. Laws made by these bodies are called delegated or subordinate legislation. E.g Vic Roads. These are expert bodies that are able to make the necessary technical or specialized laws required in their area of jurisdiction. Saves Parliament time that they can focus on bigger issues in lawmaking. - By delegating power to subordinate authorizes, parliament is giving up lawmaking power to unelected undemocratic bodies (except for local councils, which are elected). While subordinate authorities are able to pass laws quickly, this is due to a lack of debate in its law-making processes. With so many subordinate inconsistencies and fragmentation in the rules and regulations made by them.

Unit 3, Area of Study 2: The Constitution and the protection of rights Outcome 2
The Constitutional division of power The division of powers refers to the way lawmaking powers are divided between the Commonwealth Parliament and the State Parliaments. There are four types of lawmaking powers. Specific powers These are listed as enumerate in s.51 of the Constitution and were given to the Commonwealth Parliament to make laws for the peace, order and good government of Australia. Powers listed in s.51 include s.51 (i) taxation. Specific powers are either exclusive or concurrent Exclusive powers These are areas of lawmaking power that only the Commonwealth Parliament can exercise. They are specific powers that are made exclusive to the Commonwealth Parliament by virtue of other sections of the Constitution. For example, s.115 declares that a state shall not coin money, thereby making this power exclusive to the Commonwealth Parliament. Section 52 lists a small number of exclusive powers. Examples defense and military forces (s.114) and customs and excise (s.90) Concurrent powers There are areas of lawmaking power where both the Commonwealth Parliament and State Parliaments have authority to pass laws, as they are shared powers. Concurrent powers are specific powers that have been given to the Commonwealth Parliament to make laws, but they have not been made exclusive. E.g. marriage section 51 (xxi) Residual powers These are areas of law making power that are not listed in the Constitution, hence they remain with the states (as they have not been given to the Commonwealth Parliament). Some of these areas of power were deliberately left to the states to legislate on, such as criminal law; others have developed as residual powers, as the area of law did not exist at the time of the Constitution was passed and could not be listed so they have fallen under the power of the states. Section 106-108 of the Constitution protect the laws and the Constitutions of the states E.g. areas such as criminal law, education, public transport and health.

Restrictions on State powers States cannot legislate in areas of exclusive power as they belong solely to the Commonwealth e.g o A state shall not coin money (s.115) o A state shall not raise or maintain any naval or military forces (s.114) Trade between the states shall be free no sate can charge trade duties to another state (s.92) In areas of concurrent power, any state law that is inconsistent with a Commonwealth law shall be declared invalid (s.109) Restrictions on Commonwealth powers The Commonwealth shall no make any law for establishing, imposing or prohibiting any religion (s.116) The Commonwealth shall no give preference to one state over another state (s.99) The Commonwealth cannot restrict free trade between the states (s.92) Changing the Constitutional powers 1. Through amending the wording of the Constitution by holding a referendum 2. Through a decision of the High Court in a case that involves some interpretation of the Commonwealth Constitution 3. Through the states referring or giving some of their law making powers to the Commonwealth Parliament NOTE: each method of changing the constitutional division of power can result in a change in the division of law making powers REFERENDUM - Only the Commonwealth Parliament can initiate a change - The proposed change is drafted as a Constitution Alteration Bill and is passed through Federal Parliament. - The electors are also involved in determining whether the proposed change to the ishould be allowed. - Vote MUST satisfy the DOUBLE MAJORITY provision. - If this is done then the bill is passed to the Governor General for royal assent Only been 44 referendum proposals with only 8 being successful EXAMPLE OF SUCCESSFUL REFERENDUM The inclusion of Aboriginal people in the census and the law making power of Federal Parliament by changing s.51(xxvi) in 1967

Factors affecting the likely success of referendum proposals The Double Majority provision It requires that a majority of Australians vote yes as well as as majority of voters in a majority of states vote yes. Bipartisan support from the major political parties Unless both the Coalition and the ALP support the proposal it is difficult to pass, as each political party will be urging the supporters to vote in a different way, thereby dividing the voting public, so a clear majority is difficult to achieve. Resistance to change Voters may be conservative or reluctant to change the Constitution, especially if they view it as working well for them currently. This results in people voting no.

Aboriginal people referendum pg 38&39 HIGH COURT s.76 of the Constitution, the High Court is the only court with the power to interpret the wording of the Constitution and it can only do this when a dispute or case regarding the Constitution comes before it. For example the Tasmanian/Franklin Dam Case was a dispute between the Commonwealth and the Tasmanian Parliament over an issue of law making power. The Commonwealth Parliament passed the World Heritage Properties Conservation Act 1983 to prevent the clearing, excavation and building of a dam at the Gordon and Franklin rivers, Tasmania, as this area was included in the World Heritage List. The aim of the act was to protect the cultural and natural heritage of the area. The state of Tasmania wishing to dam the site for a hydroelectric scheme, claimed that the Commonwealth had no jurisdiction to pass such a law, however, the Commonwealth argued that it could make laws on areas of national concern s.51(xxix) external affairs High Court decided that the external affairs power gave the Commonwealth Parliament power to make laws to fulfill Australias obligations under international treaties in this case the UNESCO treaty. Therefore the act was valid and the Commonwealth was able to stop the Tasmanian Government from constructing the dam. This therefore extended the meaning of the external affairs power to include law making necessary to uphold obligations under an international treaty. This greatly expanded the law making powers of the Commonwealth Parliament, as the Commonwealth was able to legislate on an area that was previously a residual power.

THE REFERRAL OF POWERS The states are able to refer or give some of their law making powers to the Commonwealth Parliament. Section 51(xxxvii) of the Constitution gives the Commonwealth Parliament power to make laws on matters referred to it by the parliament of any state. States may choose to do this when they think that an area of law-making is best dealt with by the Commonwealth, due to its expertise, or so that laws can be consistent across states. However, states generally have been reluctant to hand over their law making powers. The Commonwealth Parliament does not have to accept the referral of powers. E.g. The Commonwealth powers (De facto Relationships) Act 2004 (Vic.) extended the referred powers in relation to de facto relationships to include financial matters arising from the breakdown of a de facto relationship. Pg 44 Protecting rights in Australia The three main constitutional means for rights protection under investigation are: Structural protection Expressed rights Implied rights Structural protection Within the Constitution there are a number of sections that give protection of rights to Australia. While some are expressly stated, other rights are protected indirectly by the structures set up by the Constitution and act to guard against a misuse of power by the Commonwealth Parliament. These structures, such as representative government, responsible government and the separation of powers, operate as a form of structural protection of rights. Diagram pg 48 + Roach case pg 51

Express rights The rights that are protected by the written words of the Constitution are referred to as express of explicit rights. These rights are also entrenched rights, meaning that they can only be changed or removed through amending the Constitution by a successful referendum. Commonwealth Parliament cannot alter them through the passage of a normal bill. There are only five express rights written into the Constitution. Freedom of religion s.116 The Commonwealth shall no make any law for establishing, imposing or prohibiting any religion. Trial by jury s.80 The trial by indictment of any offence against nay law of the Commonwealth shall be by jury. This section applies only to Commonwealth offences;

Implied rights Are those no explicitly stated or written into the Constitution, but which have been found by the High Court to have been suggested by the wording of the Constitution. The High Court has found one implied right Freedom of political communication In 1992 in the cases of Nationwide News Pty Ltd v. Wills and Australian Capital Television Pty Ltd the majority of the High Court found that the system of representative government in the constitution implied that it was necessary to discuss information and opinions about political and governmental affairs so the public can make informed choice regarding who should represent them in public.

EVALUTATION of the constitutional protection of rights for Australians Pg 53 Comparison of Australias constitution approach VS USA Pg 60 + 61

Unit 3, Area of Study 2: Role of the courts in law making Outcome 3

Court Hierarchy pg 64

Ability of judges and courts to make laws There are two situations in which the courts make laws: 1. Judges make laws on a new issue that arises in a case before them, on which there is no previous statute or common law, or the current common law requires expansion 2. Through the interpretation of legislation as it applies to a case before them. NOTE: Court made law is also known as case law, common law or judge-made law. Limitations on a judges ability to make law. Judges can only make law if there is a test case before them: That is, they must wait for a case to arise with a legal issue that has not previously been considered by any court, or which tests the validity of an existing law, or which requires the interpretation of an existing law (either statute or common law) The position of the court hierarchy Only superior courts in the hierarchy create precedent. These are the courts of record, where the judgments are reported. Judges may be bound by existing precedent This is when law has been established by a higher court, so they have to follow it. However, if the case they are hearing is significantly different

from the case in which the precedent was established, judges may be able to distinguish the precedent. Doctrine of precedent - Precedent is the judgment of a court that sets a principle of law. The reason for the decision, or the ratio decidendi, becomes a statement of court made law. - refers to the process by which judges follow the reason for the decisions given by courts higher in the court hierarchy when deciding on similar future cases. This is also known as stare decisis, which literally means to stand by what has been decided. Precedent is of two types: Binding and persuasive Pg 66 - 69