Unit 4 aos 1 legal studies study notes PDF

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UNIT 4 AOS 1 THE PEOPLE AND THE AUSTRALIAN CONSTITUTION Rule of law: the principle that everyone in society is bound by the law and must obey the law. Laws should be fair and clear, so people are willing and able to obey them. -> upheld by criminal & civil justice system, Australian constitution., parliament, courts & law reform Constitutional monarchy: a system of government in which a monarch (i.e king or queen) is the head of state and a parliament makes the laws under the terms of a constitution Representative democracy: a system of government in which all eligible citizens vote to elect people who will represent them in parliament, make laws and govern on their behalf

The Australian constitution : a set of principle that guide the way Australia is governed. The Australian constitution was passes by the British parliament and its formal tittle is commonwealth of Australia constitution Act 1900 (UK) - establishes the commonwealth parliament , its structure and composition - Establishes the high court of Australia & its powers - Set out matters relating to the states - Facilitates the division of law - making powers - Provides a mechanism by which the constitution can be changed (referendum) The federation of Australia: the union of sovereign states that gave up some of their powers to a central author to form Australia

The role of the crown and the house of parliament (victorian and commonwealth) in law- making

Government : the ruling authority with power to govern, formed by the political party or coalition of parties that holds the majority in the lower house in each parliament . The members of parliament who belong to this political party form government, with their leader becoming the prime minister / premier who appoints ministers Opposition : the political party that holds the second largest number of seats (after government) in the lower house, appointing shadow ministers to scrutinise the decision of each government minister. The opposition questions the government about policy matters and is responsible for holding them to account

THE SENATE ‘The state house’ - equally represent interests of each state regardless of size or population

THE HOUSE OF REPRESENTATIVES ‘The people house’ - reflects the current views and values of people 1. Initiate , debate and vote on the bills 2. Determine and provide responsible government Role 3. Provide representative government 4. Publicise & scrutinise government administration, using committee’s 5. Act as a house of review 6. Control government expenditure 7. Decide matters of national interest

1. Acts as a house of review 2. Represent the states Role 3. Scrutinise bills through the committee process 4. Initiate and pass bills 5. Decide matters of national interest

THE LEGISLATIVE ASSEMBLY 1. 2. Role 3. 4. 5.

THE LEGISLATIVE COUNCIL

Initiate , debate and vote on bills Form government Provide representative government Act as a house of review for bills Control government expenditure

1. Initiate , debate and vote on the bills 2. Act as a house of review for bills Role 3. Examine bills though the committee process

The crown is represented by the government-general at federal levels and 6 governors at state level

- ensures that the democratic system operates effectively

THE CROWN 1. Role

Grant royal assent • royal assent: the formal signing and approval of a bill by the governor - general or the governor after which the bill becomes an act of parliament (i.e a law )

2. Withholding royal assent • hold the power to refuse to approve a bill and therefore make it an act of parliament at a federal level, however not a state level 3. Appointing executive council • executive council: a group compromising of the prime minister/ premier and senior that is responsible for administering and implementing the law by giving advice about the government & departments

The division of constitution law-making powers of the state and commonwealth parliaments, including exclusive, concurrent and residual powers Law making powers: powers or authority given to parliament to make laws in certain areas. These powers are exercisable by parliament, which is the supreme law-making body in Australia -> creation of the Australian parliament required colonies to agree and specify the way law- making powers were to be shared/divided I.e. the powers retained by state parliament & powers held by federal parliament

The significance of section 1109 of the Australian constitution Section 109 of the constitution prescribes the validity of laws when state and commonwealth laws conflict • The commonwealth parliament is required to challenged the state law in federal court • It is a mechanism to deal with what we do when there is an area of concurrent power when a state and commonwealth pass law and there’s a conflict between them. Which triumphs the other? •

Section 109 states: When a law of a state is inconsistent with a law of the commonwealth, the latter shall prevail, an the former shall, to extent of the inconsistency, be invalid Important points on section 109 section 109 only applies in areas of concurrent lawmaking powers S 109 does not mean that where a conflict exists between commonwealth law and state law that commonwealth law abolishes the state law completely, only to ‘to the extent of the inconsistency’ (that is how much of a clash exists) • Therefore, s 109 is only invoked where both the state and commonwealth clash directly, and cannot exist simultaneously

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Example of how S109 works If the commonwealth law states that you must do X and the state law states that you must not do X, then that section of the state law will be inoperable; e, if challenged you simply can’t obey both laws at the same time, so the inconsistent part of the state law is deemed invalid Case example: McBain V Victoria (2000) 99 FCR 116 • the victorian law, the infertility treatment act (1995) stated that a women has to be in a married relationship to access IVF treatment • The commonwealth law, the sex discrimination act (1984) made it unlawful to deny a person a service such as IVF treatment on the basis of their marital status Dr McBain could not obey both laws at the same time 0 if he denied a women treatment because she was not in a defect relationship or married, he was obeying victorian law but breaking commonwealth law Outcome: The federal court determined that the commonwealth law prevailed (due to section 109 ) & the section of the victorian law that limited IVF treatment based on marital status was invalid. Thus, Dr McBain’s patient ( a single women ) was therefore entitled to receive IVF treatment

This means by which the Australian acts as a check on a parliament in law- making, including: The constitution prevents the commonwealth parliament from having absolute power by acting as a check on its law-making. There are 5 means by which the constitution acts as a check on parliament:

1) The bicameral structure of commonwealth parliament

Bicameral: a parliament with two houses (also called chambers ) - federal : senate + house of representatives - Victorian : legislative council + legislative assembly

The bicameral structure of the Australian parliament is outlined in section 1:

Other section of the Australian constitution establish the composition of the houses: Section 7: requires the senate to be composed of senators for each state, directly chosen by the people for a term of 6 years years Section 24: requires the house of representatives to be composed of members directly chosen by the people Section 28: states that every house of representatives shall continue for 3 years, but may be dissolved by the governor-general The constitution does lever certain matters about composition to the dederal parliament ( section 7 - ‘until the parliament theorised provides there shall be 6 senators for each original state ’)

Checking process: The bicameral structure enables houses to review and scrutinise proposed legislation • senators should vote according to the interest of their state, but often align with their political party

Rubber stamp: a term used to describe the situation in which the upper house of parliament automatically approves decision made in the lower house because government holds majority of seats in both houses and its members both along party lines • Weakness the checks & balance designed to protect the misuse of power

Strengths

Weaknesses

Allows for review & scrutiny of bills, checking against the abuse of powers

Rubber- stamp senate sees lack of debates, negotiation and scrutiny, diluting checks emplace

Considerable debates occur when slim majority is held

Increased in minors & independent stalls lawmaking & may result in less effective laws, as they as are ‘water down’ to satisfy more senators

Hostile senate sees robust discussion and amendments to satisfy most people Legislation cannot be passed to abolish either house , as it is specifically stated in the constitution

No constitutional requirement for state parliaments to be bicameral (QLD isn’t) Members required to vote according to political party

2) the separation of legislative, executive and judicial powers The Australian constitution distinguishes 3 seperate types of powers in the parliamentary system, requiring each to operate independently from each other at federal level (“separation of powers ”) - ensures no body has absolutely power of control over functions of the political & legal system - Core principle of the rule of law

While executive & legislative is combined, it is critical that legislative & judicial powers are kept seperate, to safeguard from political influence and misuse of political powers in the resolution of disputes

Reason for separation of powers: - prevents power from being held by one authority, thus protecting individual rights - Separates making and prosecuting of laws to ensure a fair & just system

Strengths Allows legislative to scrutinise executive

Weaknesses Overlap of legislative & Executive reduce check on powers

Independent judiciary ensures fairness Far less scrutiny in rubber stamp senate Minister subject to scrutiny during question time despite overlapping powers

Judges appointed by the executive, potentially influencing composition

Minority in senate allows for greater scrutiny Separation of powers entrenched constitution

Separation of powers only apply at the federal level

3) the express protection of rights •

Express rights are rights that are explicitly entrenched and enumerated into the commonwealth constitution

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Express rights can only be changed by a referendum

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Express rights help limit the commonwealth parliament in law-making, rather than be positive rights for individuals

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Parliament cannot pass legislation that infringes these rights

THE 5 EXPRESS RIGHTS 1. The right to freedom of religion (human right) • Section 116 • States that the commonwealth parliament cannot make law that: establishes a state religion, imposes any religious observance or prohibits the free exercise of any religion 2. The right to free interstate trade and commerce (economic right) • Section 92 • States that the commonwealth parliament cannot:treat interstate trade differently from trade within a state, thus providing freedom of movement between states, without burden or hinderance 3. The right to receive ‘just terms’ when property is acquired by the commonwealth (democratic right) • Section 51 • States that the commonwealth parliament must: provide just terms when acquiring property, that is, the commonwealth must pay fair and reasonable compensation for property that is compulsorily acquired.

4. The right to trial by jury for indictable commonwealth offences (democratic right) • Section 80 • States that: there must be a jury for indictable commonwealth commonwealth offences under criminal law • However: Most indictable are under state law, therefore the ability of this right to be exercise is limited 5. The right not to be discriminated against on the basis of the state where you reside (democratic right) • Section 117 • States that: it is unlawful for state and commonwealth governments to discriminate against someone on the basis of the state in which that person resides

Strengths Express rights impose limits on what parliament can make laws on and what it can’t. In this way, the public is protected against the parliament being able to make any laws it wants to Express rights can only be removed through referendum

Weaknesses There is limited opportunist for more express rights to be added to the constitution because it requires a referendum The rights that are explicitly protected are limited in scope, therefore their application is very narrow There are only 5 express rights

Express rights cannot be removed by parliament Stability of rights leads to greater awareness

HIGH COURT INTERPRETATION The high court of Australia is the only court able to hear matters in relation to the Australian constitution due to its jurisdiction The high court was established under section 71 of the Australian constitution The high court cannot change the wording of the constitution, however, it can change the way the words are interpreted

When the high court interprets the constitution, thus establishes a precedent that is binding on all the other Australian courts

WAYS THAT THE HIGH COURT ACTS AS A CHECK ON LAW - MAKING 1. It acts as a guardian

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The high court does this by explaining what the constitution means and how it should be interpreted, ensuring that it remains relevant to Australian people

2. It acts as a check to any abuse of power •

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Any party has the right to argue that the commonwealth government has acted outside its set jurisdiction These parties can therefore bring the matter forward to the High court for ruling on the laws constitutionality. This must be done by a person with a standing (directly affected) However, it is expensive to take a case to the high court If a parliament has passed a law outside its jurisdiction, then the high court can deem the law ultra virus (acting or done beyond ones legal power or authority)

3. It gives meaning to words •

The high court has the onus of giving meaning to the words in the constitution, and adequately apply it to the case at hand

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Through this, the high court can: 1. Establish an implied right within the constitution 2. Shift the division of law making powers • The division of peers refers to the way the constitution has allocated law-making powers to commonwealth and/ or state parliament

Strengths Judges are independent of executive

Weaknesses Judges can only rule on challenges brought to them

Allows the public to have a law overturned HC cases are extremely expensive Experienced HC judges ensure decisions are properly made Can act as an independent check on parliament

The HC cannot change the words of the constitution, only give meaning to them

REFERENDUMS AND THE DOUBLE MAJORITY Section 128 sets out that the only way to change the Australian constitution is through a referendum It was recognised that times would change and thus the constitution would need to alter to keep up with changing attitudes. Section 128 sets out the process of changing the constitution through the referendum process.

- acts as a restriction on the powers of parliament by ensuring the federal parliament cannot freely alter the constitution

- As three main stages: 1) the parliament 2) the people 3) the governor general Referendum: the method used for changing the wording of the Australian constitution. A referendum requires a proposal to be approved by the Australian people in a compulsory public vote by a double majority Double majority: a majority of votes in the whole of Australia vote ‘yes ’ AND a majority of voters in a majority of states (4/6) vote ‘yes’ (territories not counted) - must satisfy for a referendum to be successful (impacted 1997 referendum where 2nd part not achieved) - Under section 138 each state has an equal voice regardless of size or population (thus 2nd part ) Once double majority is achieved, the amendment is presented to the governor general for royal assent Strengths

Weaknesses

Allows public control of matter, ensuring parliament does not misuse power

Public may not understand complex details of the proposal, or may vote no in fear of politicians

Double majority requirement is strict & difficult to achieve (only 8 of 44 been successful )

Double majority difficult to achieve, ensuring overwhelming support & non-controversial

Double majority protects small states, meaning larger states don’t determine success

Timely & costly Once successful, states can only lobby against it

Vote is compulsory for all voters Public is informed of the changes

Double majority can result in an outcome that appears undemocratic (national majority )

THE SIGNIFICANCE OF ONE HIGH COURT CASE INTERPRETING SECTIONS 7 AND 24 OF THE AUSTRALIAN CONSTITUTION

The high court of Australia serves as the guardian of the Australian constitution, and is called yo consider the text of the constitution and interpret its wording to decide cases that come before the court Section 7 & 24 require parliament to be directly chosen by the people, enshrining the system of representative government (a political system in which the people elect members of parliament to represent them in government) •

Section 7: states the senate must be composed of senators (who serve a term of 6 years for each state who are directly chosen by the people of their state)

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Section 24: states the house of representatives must be composed of members directly chosen by people, with the number of members being twice the number of senators

The high court interpreted these 2 sections to form the basis for the implied right to freedom of political communication (not freedom of speech) to upholds the principles of representative government •

Austrian capital television Pty Ltd v Commonwealth (1992)

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Nationwide News Pty v Wills (1992) ‣ Confirmed in Lange v Australian broadcasting corporation

Additionally, the high court has ruled that legislation under these 2 sections cannot unnecessarily interfere with the right to vote (else parliament would not be chosen directly by the people ) •

Roach v Electoral Commissioner (2007) ‣ Confirmed in Rowe v Electoral Commissioner ‣ Confirmed in Murphy V Electoral Commissioner

Example: Roach v Electoral commissioner (2007) The commonwealth parliament passed legislation banning all prisoners from voting in elections in 2006, which replaced an earlier law only banning those serving 3 or years. Roach, a prisoner serving a 6-year sentence, challenged the validity of both laws in the high court, claiming the legislation restricted her ‘right to vote’ Outcome: The High Court deemed the newer legislation invalid, as it was inconsistent with the constitutional requirements of representative government outlined in section 7 & 24 (though people of convicted of treason or unsound mind were prevented). The Original law was restored (though roach was still unable to vote) Significance: the case asserted that section 7 & 24 express the constitutional right of Australian people to vote in elections, thus, limiting the powers ...