Legal Studies Unit 4 VCE Notes PDF

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UNIT 4 AOS 1: THE PEOPLE AND THE AUSTRALIAN CONSTITUTION

★THE ROLEs of the crown and the houses of Parliament in law-making Key Knowledge: The roles of the Crown and the Houses of Parliament (Victorian and Commonwealth) in law-making.

CONSTITUTION: CONSTITUTION is a set of rules that establishes the nature, functions and limits of government. Ø Its role is to determine the powers and duties of the government. Ø Establishes the Commonwealth Parliament and outlines its structure Ø Establishes the High Court of Australia Ø Facilitates the division of law-making powers

COMMONWEALTH PARLIAMENT: HOUSE OF REPRESENTATIVES (lower house) is often referred to as ‘the peoples house’ because it reflects the current opinion of the people at an election. Ø Has 150 members representing electoral divisions. Ø The political party that achieves the majority of elected members becomes the government of the day.

Roles of the House of Representatives in law-making: Ø Initiate and makes laws: the government and members can introduce proposed laws (bills). Ø Determines government: the political party that has the most members in the House of Representatives forms government. Ø Represents the people: promotes representative government as they are elected to represent the people and have authority to act on behalf of the people. Ø Act as a house of review: will review bills that have been agreed upon by the Senate, it will then be passed on to the Governor-General.

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UNIT 4 AOS 1: THE PEOPLE AND THE AUSTRALIAN CONSTITUTION

SENATE (upper house) consists of 76 members, each state elects 12 representatives and territories have 2 representatives each.

Roles of the Senate in law-making: Ø Initiate and pass bills: senators can propose bills however they cannot initiate money bills, this is exclusive to the House of Representatives. Ø Act as a house of review: review the bills passed by the lower house which may be seen as inappropriate. Ø Scrutinise bills through the committee process: committees are made up of senators who assess legislative proposals and determine the effect these will have on individual rights. Ø Acts as a states’ house: as power is equally represented, no state is forgotten.

CROWN (represented by the Governor General) appointed by the Queen on the advice of the Prime Minister of Australia. Ø Main responsibility is to ensure that the democratic system operates efficiently.

Roles of the House of Representatives in law-making: Ø Granting royal assent: approval is required before a bill can become a law. Ø Withholding royal assent: can choose to refuse to approve a bill. Ø Appointing Executive Council: consists of the Prime Minister and ministers that approve secondary legislation.

VICTORIAN PARLIAMENT: LEGISLATIVE ASSEMBLY (lower house) has 88 members representing Victoria’s districts.

Roles of the Legislative Assembly in law-making: Ø Initiate and makes laws: the government and members can introduce proposed laws (bills). Ø Form government: the political party that has the most members in the House of Representatives forms government. Ø Provide representative government: as they are elected to represent the people and have authority to act on behalf of the people. Ø Act as a house of review: will review bills that have been agreed upon by the Legislative Council, it will then be passed on to the Governor.

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UNIT 4 AOS 1: THE PEOPLE AND THE AUSTRALIAN CONSTITUTION

LEGISLATIVE COUNCIL (upper house) comprises 40 members for parliament, 5 members from 8 regions of Victoria.

Roles of the Legislative Council in law-making: Ø Initiate and pass bills: government can propose bills, but they are usually initiated in the Legislative Assembly. Ø Act as a house of review: review and scrutinise the bills passed by the Legislative Assembly which may be seen as inappropriate. Ø Examine bills through the committee process: committees assess proposed laws and whether bills should be supported as part of the legislative process.

CROWN (represented by the Governor of Victoria) appointed by the Queen on the advice of the premier of Victoria. Ø Main responsibility is to ensure that the democratic system operates efficiently.

Roles of the House of Representatives in law-making: Ø Granting royal assent: approval is required before a bill can become a law. Ø Withholding royal assent: can choose to refuse to approve a bill. Ø Appointing Executive Council: consists of the Premier and ministers that approve secondary legislation.

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UNIT 4 AOS 1: THE PEOPLE AND THE AUSTRALIAN CONSTITUTION

★Division of law-making powers Key Knowledge: The division of constitutional law-making powers of the state and Commonwealth parliaments, including exclusive, concurrent and residual powers.

DIVISION OF LAW-MAKING POWERS: LAW-MAKING POWERS are authority given to parliament to make laws in certain areas. Ø Powers are exercisable by parliament, the supreme law-making body in Australia.

RESIDUAL POWERS are powers that were not given to the Commonwealth Parliament under the Australian Constitution and which therefore remain with the states. Ø Eg: criminal law, education and public transport are not mentioned under the Constitution and therefore belong to the states.

EXCLUSIVE POWERS are powers in the Australian Constitution that only the Commonwealth Parliament can exercise. Ø Eg: defence, currency, customs and border protection. Ø Set out in Section 51 of the Australian Constitution.

CONCURRENT POWERS are powers in the Australian Constitution that may be exercised by both the Commonwealth and one or more state parliaments. Ø Eg: trade, taxation, marriage and divorce. Ø Set out in Section 51 of the Australian Constitution.

Comparison of law-making powers: Ø Held by: Residual (held by the state parliaments), exclusive (held by the Commonwealth Parliament) and concurrent (held by both the Commonwealth Parliament and state parliaments). Ø Expressed in the Constitution: Residual (no), exclusive (yes) and concurrent (yes). Ø All are protected by the Constitution: residual (Sections 106, 107 and 108), exclusive (sections 51, 52 and others) and concurrent (Section 51).

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UNIT 4 AOS 1: THE PEOPLE AND THE AUSTRALIAN CONSTITUTION

★section 109 of the Australian Constitution Key Knowledge: The significance of section 109 of the Australian Constitution

SECTION 109: COMMONWEALTH OF AUSTRALIA CONSTTUTION ACT 1900 (UK) 109 INCONSISTENCY OF LAWS: When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency be invalid. Ø If there is a conflict between State and Commonwealth laws, the Commonwealth law will prevail to the extent of the inconsistency.

Significance of Section 109: Ø Acts as a restriction on state parliaments: if a state parliament passes a law in an area where there is a Commonwealth law, the Commonwealth law will prevail to the extent of the inconsistency. This means that the state parliament, in passing laws in areas of concurrent powers will recognise that its powers are constrained where a Commonwealth law exists.

MCBAIN v VICTORIA (2000): Case outline: Ø Dr John McBain against the State of Victoria Ø Conflicting legislation was the Infertility Treatment Act 1995 (Vic) and the Sex Discrimination Act 1984 (Cth) o Infertility Treatment Act stated that to receive treatment, a woman must be married or in a de facto relationship with a man. o Sex Discrimination Act made it unlawful to refuse to provide a service on the grounds of their marital status. Ø This meant that he couldn’t provide treatment to single women or lesbians. Ø He brought this case to the Federal Court with his patient and the Court upheld McBain’s argument, on the basis of Section 109 of the Australian Constitution, the Commonwealth law should prevail.

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UNIT 4 AOS 1: THE PEOPLE AND THE AUSTRALIAN CONSTITUTION

★Australian Constitution as a check on parliament Key Knowledge: The means by which the Australian Constitution acts as a check on parliament in law-making: Ø The bicameral structure of the Commonwealth parliament Ø The separation of the legislative, executive and judicial powers Ø The express protection of rights Ø The role of the High Court in interpreting the Australian Constitution Ø The requirement for a double majority in a referendum

BICAMERAL STRUCTURE OF THE COMMONWEALTH PARLIAMENT: BICAMERAL PARLIAMENT means that there will be both a lower and an upper house and is stated in Section 1 of the Australian Constitution. Ø Bills must be reviewed and approved by both houses and receive royal assent before becoming laws.

Strengths

Weaknesses

The existence of two houses allows for review of legislation by the second house, they will scrutinise and no abuse of power.

When the government also controls the upper house, it tends to be a ‘rubber stamp’ confirming decisions made by the lower house, diluting the checks.

The requirement for a bicameral parliament is specifically stated in the Australian Constitution, can

If the government holds majority in the lower house, then negotiations and debates are unlikely to occur.

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If there is a hostile senate (upper house not controlled by the government of the day), the upper house is likely to review bills passed through the lower house more carefully.

The Australian Constitution does not require state parliaments to be bicameral, meaning that there is no constitutional requirement for the Victorian Parliament to have two houses.

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UNIT 4 AOS 1: THE PEOPLE AND THE AUSTRALIAN CONSTITUTION

SEPARATION OF POWERS: SEPARATION OF POWERS keeps the three powers of our parliamentary system separate to ensure no one body has absolute power or control over the political and legal systems.

EXECUTIVE POWER is the power to administer the laws and manage the business of government and is vested in the Governor-General. Ø Carried out by the Prime Minister, senior ministers and government departments.

LEGISLATIVE POWER is the power to make laws which resides with the parliament. Ø The legislative and executive power are combined at a federal level as laws passed by parliament must receive royal assent from the Governor General to become law.

JUDICIAL POWER is the power given to courts and tribunals to enforce the law and settle disputes. Ø Only a court or tribunal can decide if a law (made by parliament) has been contravened.

Reasons for the separation of powers: Ø Prevents power from being concentrated in one set of hands as no one body can make law, administer law and also rule on its legality. Ø Helps to protect individual rights by providing checks and balances on the power of the Commonwealth Parliament.

Strengths

Weaknesses

Allows for the executive to be scrutinised by the legislature providing checks and balance for inappropriate laws to be refused.

The legislative and executive power are combined, decreasing the separation of powers as the power to administer law is carried out by the Cabinet.

The judiciary is independent of the parliament and government.

The Australian Constitution only provides for separation of powers at a federal level, not at a state level.

The principle of the separation of powers is entrenched in the Australian Constitution, can only be changed with a referendum.

Judges are appointed by the executive meaning the executive may have some influence on the results of judicial determination.

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UNIT 4 AOS 1: THE PEOPLE AND THE AUSTRALIAN CONSTITUTION

EXPRESS PROTECTION OF RIGHTS: EXPRESS RIGHTS are rights that are stated in the Australian Constitution, meaning they are entrenched and can only be changed by a referendum.

THE RIGHT TO FREEDOM OF RELIGION prevents the Commonwealth from making laws establishing a state religion, imposing a religion or prohibiting the exercise of a religion. Ø Stated in Section 116 of the Australian Constitution.

THE RIGHT TO FREE INTERSTATE TRADE AND COMMERCE prevents the Commonwealth treating trade within a state as different to between states. Ø Stated in Section 92 of the Australian Constitution.

THE RIGHT TO RECEIVE ‘JUST TERMS’ WHEN PROPERTY IS ACQUIRED BY THE COMMONWEALTH means the Commonwealth must pay fair and reasonable compensation for property compulsorily acquired. Ø Stated in Section 51 of the Australian Constitution.

THE RIGHT TO TRIAL BY JURY FOR INDICTABLE COMMONWEALTH OFFENCES means there must be a jury for indictable criminal offences. Ø Stated in Section 80 of the Australian Constitution.

THE RIGHT NOT TO BE DISCRIMINATED AGAINST ON THE BASIS OF THE STATE WHERE YOU RESIDE means it is unlawful for governments to impose laws that discriminate against people based on the state in which they were born. Ø Stated in Section 117 of the Australian Constitution.

Strengths

Weaknesses

Express rights impose limits on what parliament can make laws on.

Express rights can only be changed by a referendum, which is difficult, thus there is a limited ability to add further rights.

Express rights cannot be removed by the Commonwealth Parliament, they are entrenched and need a referendum to change.

The cost of initiating a court case is high, restricting access to take action against an infringement of these rights.

Any person who believes that a law infringes these rights can take a case to the High Court, allowing a judicial check on Parliament.

The protection of rights does not prevent the Commonwealth from passing the law, it requires a law to be challenged in court to be declared invalid.

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UNIT 4 AOS 1: THE PEOPLE AND THE AUSTRALIAN CONSTITUTION

ROLE OF THE HIGH COURT IN INTERPRETING THE AUSTRALIAN CONSTITUTION: THE HIGH COURT is established under Section 71 of the Australian Constitution and Section 76 provides the Commonwealth Parliament with jurisdiction to hear disputes arising under the Constitution.

Roles of the High Court: Ø Acts as a guardian of the Australian Constitution: does this by explaining what the Constitution means and deciding how it is interpreted. Ø Acts of a check on any abuse of power: if an individual or group feels the Commonwealth has made a law beyond its control, the High Court can determine whether it is constitutional. Ø It gives meaning to the words: applies the words of the Constitution to cases. • It can find that there are implied rights (not expressly written in the Constitution) through the interpretation.

Strengths

Weaknesses

Judges are independent of the executive and decisions are made on legal principles rather than political pressure.

Judges can only rule on the facts of the case that is brought up before them.

The existence of the High Court allows individuals who The cost of initiating a court case is high, restricting have an interest in a case to have a law overturned. access to take action against an infringement of these rights. Where a parliament has made a law outside of its power, the High Court can act as an individual check to confirm whether there has been an abuse of

The High Court’s role is limited to interpreting the Constitution rather than changing the words.

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UNIT 4 AOS 1: THE PEOPLE AND THE AUSTRALIAN CONSTITUTION

REQUIREMENT FOR A DOUBLE MAJORITY IN A REFERENDUM: DOUBLE MAJORITY is a requirement for the majority of voters in the whole of Australia to vote yes and the majority of voters in a majority of states to vote yes for a successful referendum. Ø Outlined in Section 128 of the Australian Constitution.

Strengths

Weaknesses

Section 128 allows the public to refuse a proposed change, allowing the Commonwealth to not exert power arbitrarily.

The public may not understand the complex details of the proposal and vote no through fear of change.

The double majority requirement is strict and has been proven difficult to achieve.

The cost of initiating a referendum is high, restricting access to take action against a change in the Constitution.

The vote is compulsory, which removes the power from the Commonwealth to decide.

The double majority provision is difficult to achieve which means that even valid changes may not proceed.

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UNIT 4 AOS 1: THE PEOPLE AND THE AUSTRALIAN CONSTITUTION

★High court interpretation of sections 7 and 24 Key Knowledge: The significance of one High Court case interpreting sections 7 and 24 of the Australian Constitution

SECTIONS 7 AND 24 OF THE CONSTITUTION: THE HIGH COURT is the ultimate court of appeal in Australia and the court with the authority to hear and determine disputes arising under the Australian Constitution.

SECTION 7 explains the Senate shall be composed of senators for each state, directly chosen by the people of the State.

SECTION 24 explains the House of Representatives shall be composed of members directly chosen by the people of the Commonwealth.

Significance of Sections 7 and 24 of the Australian Constitution: Ø Enshrines in the Australian Constitution a system of representative government, which reflects the majority of the people who voted for it.

ROACH v ELECTORAL COMMISSIONER: Case outline: Ø Vickie Lee Roach v the Electoral Commissioner Ø In 2006, the Commonwealth Parliament passed the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth), which banned all convicted and sentenced prisoners from voting in elections. Ø Roach challenged the constitutional validity of this act in the High Court as Section 7 of the Constitution states that senators must be directly chosen by the people of the state. Ø High Court ruled in favour of Roach by stating prisoners with a sentence less than 3 years may have the right to vote. Ø Supported the principle of representative government and the implied right to vote.

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UNIT 4 AOS 1: THE PEOPLE AND THE AUSTRALIAN CONSTITUTION

★Referendum protecting or changing the Constitution Key Knowledge: The significance of one referendum in which the Australian people have protected or changed the Australian Constitution

REFERENDUMS: A REFERENDUM is a method used for changing the wording of the Australian Constitution. Ø It requires a proposal to be approved by the Australian people in a public vote by a double majority. Ø Section 128 helps to prevent the Commonwealth from increasing its powers without first referring the proposal to the people in a referendum.

THE 1967 ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES REFERENDUM: Case outline: Ø Until 1967, the Constitution denied the Commonwealth the ability to legislate in matters relating to Indigenous Australians or to include them in the census. Ø Section 127 of the Constitution stated that Aborigines were not to be counted in reckoning population. Ø A proposal was put forward to count Aborigines in our census and to create a law regarding ‘people of the Aboriginal race’. Ø The referendum concluded with 90.77% of voters in favour of the changes. Ø The referendum allowed the Commonwealth to move into an area that is was previously unable to as it was previously a residual power but now concurrent.

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UNIT 4 AOS 1: THE PEOPLE AND THE AUSTRALIAN CONS...