Legal Studies Unit 3 Study Design

Unit 3, AOS1: Parliament and the Citizen
1. Principles of the Australian Parliamentary System - bicameral, democratic, constitutional monarchy.
  1. Representative Government - allocation of electorates, each MP rep. 40-45,000, democratically elected and voted out according to peoples view.
    1. Responsible Government - MP's are accountable through 'checks & balances', shadow ministers, question time, if MP cannot answer during scrutiny, expected resignation.
      1. Separation of Powers
        Legislative, made up of MP's and Senators who make the laws.
        Executive, administering the laws created, done by ministers & Governor[General].
        Judicial, enforcing laws & determining when they are broken, done by Judges and Courts.
        Doctrine of the Separation of Powers: provides checks & balances, prevents corruption and abuse of power, "if one arm of a tree grows too long, the tree will fall over."
2. Structure of the Victorian Parliament
  1. Upper House: Legislative Council - 40 members - 5 from each 8 regions - 4 year seat held - proportional voting - house of review, cannot block Budget bills.
    1. Lower House: Legislative Assembly - 88 members, each rep. 40-45,000 - 4 year seat held - preferential voting - chief law-making body in Vic.
      1. Queen's Rep: Governor of State - Alex Chernov - only one - 5 year term generally, appointed by Queen on Premier's recommendation. Provides Roya assent, yet does not have liberty to every withhold. (Unlike at a federal level.)
3. Structure of Commonwealth parliament
  1. Upper House: The Senate - "House of Review" - 76 Members, [12 per state, 2 per territory] - Proportional Voting - 6 year seat held, 3 year ½ re-election - role is to review Parliament's proposals.
    1. Lower House: House of Representatives - "People's House" - 150 members, min. 5 reps per state - Preferential Voting - 3 year seats held - chief Law-Making body.
      1. Queen's Rep: Governor General - Peter Cosgrove - only one - nominated by PM, approved by Queen, 5 year term generally - provides Royal Assent.
4. Reasons why Laws may need to Change
  1. 6. To reflect society's changing values, of which they are a representation.
    1. 7. When they are ineffective
    2. 5. To recognise threats, new issues, political circumstance
      1. 4. To make the system more effective
        3. To recognise significant events, e.g. 'one punch' laws
        2. To meet economical change, e.g. fair work act. 2009
        1. When technology is updated, e.g. sexting laws
5. Means by which Individuals and Groups influence Change
  1. Petitions
    1. Lobbying
      1. Pressure Groups
      2. Demonstrations
        Informal Methods:
  2. VLRC Reports submit to Parliament
    1. Royal Commissions
      1. Government Inquiries
        Committies
        Informal Methods:
6. Role of the Victorian Law Reform Commission (VLRC)
  1. Advisory to the government, independently making recommendations to reform laws. Does not make Law. Informal - reaches a wide network - well connected, is able to conduct research.
7. Legislative Process for a Bill through Parliament
  1. Types of bills: Government, Private Member, Money/Appropriation, Delegation.
  2. (1) Drafting Process, drafted by Parliamentary Lawyers
    1. (2) Notice of Intention, First Reading - minister or member presenting gives quick intro.
      1. (3) Second Reading - second reading speeches, shadow minister questions, content published in hansard.
        (4) Consideration in Detail - bill is debated clause by clause, changes made by minister who presented it.
        (5) Third Reading - after which a vote is taken, in favour = aye, needs majority to go to Senate.
        (6) Upper House - repeats same process, amendments likely, if no changes, can continue on.
        (7) Royal Assent and Proclamation - signed by Governor[General] and date of effect stated.
8. Strengths and Weaknesses of Parliament as a Law-Making Body
  1. Strengths: ability to delegate - democratic system of election - Laws are made in-futuro - sovereignty over courts - bi-cameral system of review.
  2. Weaknesses: Fear of voter backlash - bicameral structure time consuming, no guarantee of approval - difficulties in drafting - inconsistencies amongst wide range of laws.
Unit 3, AOS2: The Constitution (Part A)
1. Specific [Enumerated] Power, Section 51.
  1. Concurrent
    1. Powers which may be exercised by both Cmwlth. and the States.
      1. S.51(xxi) Marriage
        S.51(xi) Census and Statistics
        S.51(ii) Taxation
  2. Exclusive
    1. Law-Making powers written in the constitution, over which only the Cmwlth. can legislate.
      1. S.51(vi) Only Cwlth. can raise a naval/military defense
        S.51(iii) The Cmwlth. has power over laws about Customs
        S.51(xxi) Only Cmwlth. can legislate about 'currency, coinage', etc.
  3. Stated in the Constitution as all the law-making powers given to the Commonwealth. Listed in Section 51, there are 40 of these powers.
    1. They can either belong solely to the Cmwlth. = Exclusive, or can be shared in part with the States, = Concurrent.
2. Residual Powers, Section 109.
  1. Where the state retains power that is "left over" from the Cmwlth., e.g. areas where Cmwlth. does not already have Jurisdiction.
    1. S.106, S.107, allows states to legislate for technology updates. E.g. Mc.Bain VS. Vic case.
      1. Nature of Residual Powers can cause inconsistencies in Law.
3. Process of Change by Referendum
  1. Case Study: 1967 Referendum for Indigenous Rights
    1. 'inclusion' vote, 91% approval, removing S.127 of Const, which stated that aborigines were not counted in Census.
  2. How did Case Study alter Division of Law-Making Power?
    1. Added words to listing S.51, giving Cmwlth. power to legislate over indigenous people as part of the public. Removed the words in S.127 of Constitution.
  3. Section 128 of the Constitution - "The Cmwlth. cannot change the Constitution without referendum."
    1. Factors affecting Success
      1. Ingrained in Politics - Strict formula for Change - Special Majority needed - Complexity of Proposals - Difficulty gaining Bi-Partisan - lack of understanding in public.
  4. A successful referendum results in: words being added or words being deleted.
4. Constitution & The Protection of Rights
5. How the Constitution Protects Rights
  1. Structural Protections
    1. Common Law, Democratic System, Parliament making Laws (Bicamerality), etc.
      1. Constitutional Clauses on Rep & Resp. Government
        S.7, 24, 28, 23, 40, 8, 30, 1, more.
  2. Express Rights
    1. S.51(xxxi) - Right to compensation for acquisition of property
      1. S.80 - Right to Trial by Jury
        S.92 - Right to freedom of interstate trade + commerce
        S.116 - Right to freedom of Religion
        S.117 - Right to residential non-discrimination
  3. Implied Rights
    1. E.g. The Right to Political Communication (result of a HC ruling)
      1. The Right to Vote
Unit 3, AOS2: The Constitution (Part B)
1. Division of Law-Making between State and Commonwealth Parliaments
  1. S.51 - allows states to refer their powers to Cmwlth. in certain areas
  2. S.105, S.105(A) - Cmwlth. parliament may take over State Debts
  3. S.96 - Cmwlth. can use financial power to make tied grants to the States.
2. Constitution and the Division of Power
  1. Restrictions on State Powers, imposed via Constitution
    1. S.90, the States must not Levy Custon - S.114, the states must not raise navy & military forces, S.115, the states must not coin money/tender - S.109, the state is restricted through the actions of Federal Parliament.
  2. Restrictions on Commonwealth Powers, imposed via Constitution
    1. S.106, S.108 - The Cmwlth. cannot pass laws which interfere with the States' power and laws. - S.128, the Cmwlth. cannot change the wording of the Constitution without referendum.
  3. Role of the High Court in Interpreting Constitution
    1. Role of HC is to solve conflict arising under Const. The only three ways a 'division of power' between the Federal/State can be achieved - 1. Referenda, 2. Referral, 3. HC Ruling.
      1. S.75, the HC can hear cases - (i) arising under a treaty, (ii) affecting consuls/other countries, (iii). in cases where Cmwlth. is involved, (iv) in disputes between states, (v) when an injunction is sought against an officer of Cmwlth.
  4. Case Study 1: How HC Interpretation altered Law-Making Power: R.VS. Brislan Case (1905) Wireless Telegraphy Act.
  5. Case Study 2: How HC Interpretation altered Law-Making Power: Adelaide Engineers Case
  6. Significance of One HC Case relating to the Protection of Rights:
    1. Albert Langer - The Roach Case - Aus. Capital Television V. Cmwlth., Rabelais Case.
3. Capacity of States' to Refer Law-Making Power to Commonwealth Parliament
  1. If the state refers a residual power, there is a power loss for them. The cmwlth. can be referred powers under S.51(xxxvii)
    1. Mirror Legislation - where states enact identical legislation to provide consistency and making 'room' for the government, i.e. allowing the government to do things. E.g. Criminal Code amendment (Terrorism) Act 2003.
4. Australia's Constitutional Approach Compared with South Africa
  1. Strengths/Weaknesses of Australian Constitution
    1. Strengths: - expressly protects some rights - structural protections - has the HC - S.128
      1. Weaknesses: few explicit rights - not entrenched charter - not comprehensive - reliance upon common law, principles.
  2. Strengths/Weaknesses of South African Constitution
    1. Strengths: comprehensive - overrides legislation - entrenched charter - courts can award money for infringement of rights.
      1. Weaknesses: change is easy (parliamentary vote) - rights may be limited, says one clause
Unit 3, AOS3: The Role of the Courts
1. Ability of Courts to make Law
  1. Ability of Judges to make Law
    1. Strengths of Law-Making through Courts
      1. Consider both sides of Argument
      2. Have some flexibility
      3. Independent of Political pressure
      4. Consistency, Fairness, Predictability
      5. Efficiency
    2. Weaknesses of Law-Making through Courts
      1. Have to wait for case, cannot legislate Retrospectively
      2. Judges are not elected to make law
      3. No Public Input
      4. "Rigid" common law system
      5. Location/Application of statute in law records, thick books
    3. Limited by Parl + Higher Court overrule
  2. Higher courts can:
    1. Overrule
      1. Reverse
        Distinguish
        Disapprove
      2. Can employ methods listed below
        When no relevant leg. can be applies
        No binding precedents
    2. to make new Common Law, which binds lower courts.
2. Doctrine of Precedent
  1. Operation of the Doctrine of Precedent
    1. Superior Courts of Record
      1. Principle of Stare Decicis
    2. Common Law system
      1. Law Reports
3. Reasons for Statutory Interpretation by Judges
  1. Statutory Interpretation
    1. intrinsic, extrinsic sources / literal, purposive approaches
  2. Effects of Statutory Interpretation by Judges
    1. Create a Precedent in some courts
      1. Generate Parliamentary Action
        Narrow/Increase Legislative Scope
  3. Respond to changes/updates
    1. Specific application of General statute
      1. Words are unclear
        Maker of Law is not one applying it
        Simplifying Language, giving meaning
  4. "Rules: in Interpreting Leg.:
    1. Ejusden Generis - 'of the same class'
      1. Legal Maxims - guidelines
        Expressio Unius Exclusio Alterius
        Noscitur a Sociis
        Stare Decisis
4. Relationship between Courts and Parliament in Law-Making
  1. Courts can influence Parliament
    1. Parliament is the creator of the Courts
  2. Courts interpret Parliament's Law
    1. Parliament has relative authority
  3. Courts 'fill gaps' in Legislation
    1. Parliament will always override
    2. Courts 'confirm' laws made by Parl.
      1. Appointment of Judges is part of Parliament's role [Executive Arm]

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Legal Studies Unit 3 Study Design

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