Comprehensive notes for Outcomes One and Two

[costargh]

To all those aspiring Legal Studies students I thought you might appreciate some advice on how achieve a respectable internal ranking. I cannot stress enough how important it is to get a high internal ranking in Legal Studies. It helped me achieve my 40 and without my good internal ranking I probably wouldn't have got it.
Firstly. Remember that SAC's are worth 50% of your Study Score. Even though your SAC's are moderated against your exam, it is pivotal to achieve a high internal ranking if you're aiming 40+.

One of the first areas you will come across will be
The Principles of the Australian Parliamentary System
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Representative Government refers to a government that characterises the views of the majority of people. The Government consists of representatives of the people who are chosen by the public.
-Regular Elections
-If government does not represent the needs of the majority of people it is likely to be voted out of office at the next election.
TIP-Do not use a circular definition. Ie. Do NOT say "representative government refers to a government that represents the views of the majority of the people". This definition will not get you full marks. (or should not if your teacher marks according to VCAA standards.)
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Responsible Government refers to the government’s accountability to the voters.
-Government is answerable to the people for its actions.
-  Ministers are responsible to parliament and therefore the people
(Ministerial accountability)
- Ministers are responsible to parliament for the actions of their department
-  Members of Parliament may question ministers about their and their department’s activities.
- Ministers must act with integrity or resign.
If government loses support of lower house it MUST resign. Hence, Government is responsible to parliament. Parliament is responsible to the people.
TIP-Make sure to not only say that government is accountable to the voters but how government is responsible to parliament and parliament is responsible to the public. Hence the link
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The Principle of separation of powers refers to the fact that there are three separate types of powers in our parliamentary system.
•   Legislative power- The power to make laws, resides with parliament.
•   Executive power- The power to administer the laws and manage the business of government. Accountable to the legislative arm of government. Under the Constitution this power is given to the executive (governor- general) but in practice it is carried out by government.
•   Judicial power-The power to enforce the law and settle disputes given to the courts.  Must be kept separate and independent from legislative and executive powers. 

Example of separation of powers: Criminal Law- Creation of a new criminal offence is a legislative power (act of parliament), the enforcement of the law is and executive power (police) and when an offender is brought before a court for trial this is a judicial function.
Under the principle of separation of powers, the three powers are separate that any one body which administers one power may not take over the power of another body that administers another power. 
Separate nature of judicial power- Not to be combined with other powers. Safeguards citizens from the misuse of political power of corruption in the resolution of disputes. (People who make the law aren't enforcing it. - Conflict of interest)

Reasons for the separation of powers:
•   Provides the stability of government and freedom of people
•   Provides independence between the bodies that make the law and the bodies that enforce the law
•   Provides a check on the power of parliament to ensure that it does not go outside its area of power

TIP-Executive power will be the one that screws you up if anything. It is given to the gov-gen but in practise the government administers the executive powers.
Make sure to explain why their is a separation of powers and what is limits. (Absolute power= corruption)
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Structure of State and Commonwealth Parliaments
-One central government; The Commonwealth Parliament 
-Many State Parliaments
The bicameral system means two houses, an upper house and a lower house. Queensland and the territories only have one house.
TIP- Bicameral also includes the Queens representative.
TIP- Upper house and Lower house at each level have similar functions. Senate has one main differences between Legislative Council, it acts as a State's house to ensure State's interests are maintained through equal representation.

      The role of the Crown is to:
•   Appoint a federal executive council to give advice about the government, establish departments of government and appoint ministers to administer them.
•   Designate parliamentary session times
•   Bring  session of parliament to an end
•   Dissolve the House of Representatives to bring about an election
•   Give or withhold royal assent
•   Make delegated legislation as part of the executive council
•   Appoint judges to courts
      The role of the Houses of Parliament is to:
•   Make laws on behalf of the people for the good government of society
•   Provide for the formation of government
•   Provide a forum for popular representation
•   Scrutinise the actions of government
•   Delegate some of its law making power to subordinate authorities
•   Balance the books- what revenue is required and how it is to be spent.
TIP-Knowledge of 2-3 of EACH of these will suffice

Commonwealth Parliament
                            Queens rep: Governor General
                            Upper house: Senate.
                            Lower house: House of Representatives
The House of Representatives
•   Initiates laws- this is the main function of the House of Representatives
•   Determines the government – political party with majority in House of Representatives forms government and leader becomes prime minister
•   Scrutinsers government administration
•   Controls government expenditure- the government cannot spend money or raise taxes without the necessary acts of parliament being passed
•   Representing the people- citizens may present petitions to parliament and raise matters of concern
TIP- Two- Three will suffice
Additional Information
•   People's house
•   150 Members-each member represents an electoral devision
•   Terms of office: 3 years
The Senate
•   Main role is to make laws (money bills cannot be initiated in Senate)
At the time of federation the Senate had 2 main roles
•   States’ house- States (especially smaller ones) were afraid that they would give up too much power to the Commonwealth at the time of federation so therefore S7 of the Constitution states that each state, regardless of size or population, will have equal representation.
•   House of review- Majority of bills are initiated in the lower house and the Senate has the task of reviewing the bills already passed in the lower house.
Additional Information
•   76 Senators.
•   Each state has 12 representatives
•   Two representatives per territory
•   Senators are elected for a period of 6 years. Half of the senators are elected every 3 years.
Effectiveness of the Senate
Senators tend to vote according to the dictates of their party. This means that the Senate does not fulfil its role as a states’ house or a house of review. If the government has a majority in the Senate it tends to be a ‘rubber stamp’ on decisions made in the lower house.
TIP- Think about the differences between theoretical and practical roles of each house

Victorian Parliament
                            Queens rep: Governor
                            Upper house: Legislative Council
                            Lower House: Legislative Assembly
Legislative Assembly
The role:
•   House of government. Majority party earns government
•   Main role is to make laws.  Most bills initiated in Legislative Assembly.
Additional Information
•   88 districts
•   One member per district.
•   4 year fixed term. Elections held on last Saturday in November every 4 years.
Legislative Council
•   Role: House or review
Additional Information
•   8 regions
•   Each region consists of 11 districts
•   5 members of the Legislative Council will be elected for each region
•   Total of 40 MLCs

Going Further-Double Dissolutions
 The governor-general has the power to dissolve both the House of Representatives and the Senate at the same time- a double dissolution.  This happens when the Senate rejects a bill passed through the House of Representatives and then the House of Reps. passes the bill again and the Senate rejects it again. This rarely happens.
Definitions
The government is the party with the majority of members in the lower house of parliament.
Cabinet consists of the prime minister and senior ministers. It’s role is to decide on general government policy and to formulate proposed laws (bills) to be introduced to parliament.
Parliament is the law making body consisting of all members of both houses from all political parties.

There will be more to come for Outcome One Advice... just don't want to overdo on the information. A greater level of detail will be required for your SAC's than in the exam but I stress that you don't take short cuts when studying for your SAC's.

[costargh]

Area of Study 2
Constitution and the protection of rights

The following covers the entire A.O.S.2. These summaries have been constructed with the guidance of the study design. Refer to certain areas of the study design for the best use of this information. Further queries can be posted or directed in a PM to myself or any other members willing to answer questions you may have.

Examinable
The division of power between State and Commonwealth Parliaments under the Commonwealth Constitution: explanation and examples of specific, concurrent, exclusive, residual powers and the impact of S109

The role of the Commonwealth of Australia Constitution Act 1900 (UK) is to provide a legal framework within which the Commonwealth Parliament and the High Court were created.
The powers given to the Commonwealth Parliament are set out in the Constitution.

The Division of Power under the Constitution
-   Came into force on 1 January 1901
-   Since then Australia has been governed by a Commonwealth Parliament and six state parliaments
-   The Constitution gives the Commonwealth Parliament specific powers to ‘make laws for the peace, order and good government of the Commonwealth’ in relation to any of the specific powers listed in the Constitution.
-   Most of the specific powers are set out in S51
-   Reffered to as ’the 39 heads of power’ (now 40, since SXXIIIA was inserted in 1946).
-   These areas of power include marriage and divorce, taxation, insurance, banking, customs and excise. 

Specific Powers
Specific powers are all the areas of law that are mentioned in the Constitution. They are mainly referred to in S51. (Also known as enumerated powers). Some specific powers are powers which only the Commonwealth may exercise. They are exclusive to the Commonwealth Parliament and are therefore called exclusive powers. Some specific powers may also be shared with the States. These powers are called concurrent powers.
Another category of powers that are not mentioned in the Constitution are the residual powers. Residual powers were left with the states at the time of federation.
EXAMPLES OF SPECIFIC POWERS
 Eg. S51 (i) Trade and Commerce with other countries, and among the States
       S51 (ii) Taxation

Concurrent Powers
Concurrent powers are law making powers over which both the Commonwealth and state Parliaments share jurisdiction. Many of the specific powers given to the Commonwealth Parliament under S51 are concurrent powers.
EXAMPLES OF CONCURRENT POWERS
Taxation
Marriage
Census and statistics

Both Commonwealth and State parliaments can make laws on concurrent powers but the Commonwealth law prevails over state laws.
Conflict and inconsistencies can sometimes arise in this area of concurrent power. S109 of the Constitution provides a mechanism to resolve this.

Section 109
When the Commonwealth Parliament and a state parliament make a law on the same area of law ( under concurrent powers), and these state laws are inconsistent with the Commonwealth law, then there is a conflict between the legislations. Under S109 of the Constitution, if there is a conflict between state and Commonwealth legislation in an area of concurrent law making power, the Commonwealth law will prevail, to the extent of the inconstancies.
An example of S109
•   Victorian Infertility Treatment Act 1996 established the Victorian Infertility Treatment Authority and the in-vitro fertilisation program.
•   S8 of the Act says that a woman must be
-   married & living with her husband OR
-   living with a man in a de facto relationship
•   This was inconsistent with the Commonwealth legislation (S22 of the Commonwealth Sex Discrimination Act 1984) because S22 makes it unlawful for a person to refuse to provide a service to another person on the grounds of the person’s marital status.
•   Therefore the Victorian Act was unlawful and people in Victoria could not be denied access to IVF treatment due to their marital status.

Exclusive Powers
An exclusive power is a power which can only be exercised by the Commonwealth Parliament. The Commonwealth is the sole law making body that has power to make legislation in these areas of law.  Some of the specific powers listed in S51 of the Constitution are made exclusive by other sections of the Constitution.
EXAMPLES OF EXCLUSIVE POWERS
S51 (xii) Coining money made exclusive by S115
S51 (iii)  Customs and excise made exclusive by S90
S51 (vi)  Raising military and naval forces made exclusive by S114

Residual Powers
Residual powers are those law making powers left with the states at the time of federation. Powers not given to the Commonwealth Parliament in the Constitution were left with the states.  Some inroads have been made into residual powers by the Commonwealth Parliament through High Court interpretations and tied grants.
EXAMPLES OF RESIDUAL POWERS
Education
Law Enforcement
Public Transport


Examinable
Restrictions imposed by the Commonwealth Constitution on the law-making powers of the State and Commonwealth Parliaments

Restrictions on state power
The states are restricted from making law in areas of exclusive power held by the Commonwealth Parliament
For example
Raising an army (S114)
Coining Money (S115)
The powers of the states are also restricted by S109 which states that in areas of concurrent power, Commonwealth legislation will prevail over state law to the extent of the inconsistency.

Restrictions on Commonwealth Parliament
The Commonwealth Parliament is restricted from legislating in areas of residual powers: it can only pass laws on areas of power given under the Constitution.
Certain sections of the Constitution also impose restrictions on the law-making of the Commonwealth Parliament.
EXAMPLES
S116 prevents the Commonwealth from legislating with respect to religion.
S106 & S108 prevent the Com. from interfering with the states’ powers & laws
S128 restricts the Commonwealth Parliament from changing the wording of the Constitution without taking the vote to the people in a referendum.

Examinable
The process and impact of change by referendum under Section 128 of the Commonwealth Constitution

The Commonwealth Parliament can ask the people to agree to a change in the Constitution that will give greater power to the Commonwealth Government. Under S128 the people must vote in a referendum.

A referendum is a compulsory vote on a proposed change to the wording of the Commonwealth Constitution. The proposed change must first pass through both houses of the Commonwealth Parliament as a normal bill does. Voters are asked to answer “yes” or “no” to a question.
Eg. Should Australia become a republic?
S128 of the Constitution gives the mechanism for change, but has proved a difficult process. This is because of the double majority rule.
•   A majority of voters in the whole of Australia (including territories and
•   A majority of voters in a majority of states (4 out of 6)
Must vote yes for a referendum to be successful.
A majority of voters in a majority of states protects smaller states being dominated by larger more populous states.


Procedure for changing the Constitution under S128


Factors limiting the success of referendums
Only 8 out of 44 proposals have been accepted since 1901
•   Lack of bipartisan support
•   Confusion and suspicion of the voters
•   Voter conservatism
•   Strictness of a double majority
•   Timing of referendums (coincide with elections)

Impact of change by referendum
When the Constitution is changed, the actual words in the Constitution are amended and the new words appear in the updated printed copies of the Constitution. The new law is then in place.
Changes to the Constitution usually give the Commonwealth Parliament more power. This restricts the law making powers of the states because under S109 if there is an inconsistency between Com. & State law the Com. law prevails.
Eg. 1946 referendum gave Commonwealth Parliament greater control over the welfare system.
1967, Aboriginal people were recognised under the Constitution . S51 (xxvi) of the Commonwealth of Australia Constitution Act was changed to allow the Federal Parliament to make laws about all Australians including Aboriginals.
1977, judges had to retire at the age of 70.

Successful referendums
State Debt- 1928. Commonwealth Parliament set up the loan Council responsible for allocating monies borrowed by state and Commonwealth governments.
Aborigines- 1967. Commonwealth Parliament can now make laws for all Australians including Aborigines.

The last referendum was in 1999 on whether Australia should be a referendum and whether the preamble to the Constitution should be changed.

Examinable
The significance of High Court case that interpret the Commonwealth Constitution and their impact on the law-making powers of the State and Commonwealth Parliaments.

The High Court was established under S71 of the C.O.A.C.A.  S76 gives the Commonwealth Parliament the power to give the High Court the jurisdiction to hear disputes arising under the Constitution or involving its interpretation.
The High Court is the guardian of the Constitution.

The High Court is unable to change the words in the Constitution but can interpret and section or word and this interpretation adds meaning to the Constitution and can change the balance of power between the states and the Commonwealth. High Court interpretation affects the law making powers of BOTH the State and Commonwealth parliaments.

Examples of cases of High Court interpretation of the Constitution (Must know 2 cases)

R v. Brislan (1935) (Brislan’s case)
S51(v) gave the Commonwealth power to legislate on postal, telegraphic and other like services.

The Commonwealth Parliament passed the Wireless Telegraphy Act 1905 (Cth) which made all owners of wireless sets (radios) to own a license. Brislan was charged with not having a license. She argued that wireless sets were not mentioned in the Constitution and did not fit within S51(v). The High Court decided that other like services in S51(v) included wireless sets. Therefore the High Court interpreted the Constitution and expanded S51(v) to include wireless sets as areas of power that it could legislate in.

The Franklin Dam case (1983)
The High court was called upon to interpret the words ‘external affairs’ in S51 (xxix). Tasmanian Government wanted to damn the Franklin River to create a source of hydro electricity. This was within Tasmania’s law making power. The Commonwealth Parliament used its external affairs power under S51 (xxix) to legislate to make the Franklin river a world heritage site. The High Court decided that because the Franklin Dam was covered by an international treaty (which was interpreted through external affairs), the Commonwealth had power to stop the damming. This increased the law making powers of the Commonwealth because they were able to intervene in an area of law that was previously held by the states.

The impact of High Court interpretations
•   The High Court was originally very conservative in its approach to interpretation of the Constitution. It interpreted the words vert strictly.
•   Engineer’s case (1920) used a much broader interpretation which set the scene for future case. Commonwealth Parliament gradually started to gain more law making power from the states. 
•   Through the interpretation of the Constitution the Commonwealth Parliament has been able to expand its law making powers and move into residual powers.
•   Generally, High Court interpretation is gradually giving more power to the Commonwealth Parliament.

Financial Dominance
Commonwealth can give states a tied grant which means that the states are given money on the condition that the money is used in the way that the Commonwealth wants it to be.

Protection of Democratic and Human Rights in Australia
A right is ‘an interest recognised and protected by the law, respect for which is a duty , and disregard for which is wrong’

Democratic rights are rights that arise out of living in a democratic systeym which protects out ability to participate in the political process.
Eg  The right to vote
 The right to freedom of speech
 The right to have access to the legal system and courts

Human rights are those rights that relate to the dignity of the individual, such as the right to food, water, shelter, healthcare, education, freedom from slavery and oppression. These ensure equality

There is an overlap between democratic and human rights
Eg. Freedom of speech is both a democratic and human right.

Australia has its rights protected in the Universal Declaration of Human Rights and other international treaties.

However rights in international treaties are only protected in Australia if:
•   They are also part of the common law
Eg. The right to silence has always existed under common law
•   Parliament has legislated to incorporate those rights into statute.
Eg. All states have anti discrimination laws
•   The rights are protected by the Commonwealth Constitution
Eg. If the rights have been expressly protected in the Constitution

Rights protected by the Commonwealth Constitution 
The Commonwealth Constitution sets out 5 expressly protected rights. In addition the High Court has found the right to freedom of political communication to be implied.
The 5 express rights are referred to as entrenched rights. This means they can only be removed through the process of a referendum.

•   Freedom of religion (S116)
•   Free interstate trade and commerce (S92)
•   Not to be discriminated against on the basis of the state where you reside (S117)
•   Receive ‘just terms’ when property is acquired (S51 (xxxi))
•   Trial by jury (S80)

The freedom to political communication is the only right that the majority of the High Court has accepted as being implied in the Constitution.
 
The right to vote is not expressly mentioned in the Constitution although some people believe it is implied.

Express and implied rights are fully enforceable by the High Court. This means that if an Act infringes on any of these enumerated or implied rights the High court can declare the law unconstitutional (hence invalid).
If the High Court declares legislation, Parliament can:
•   Amend the legislation so that the unconstitutional provisions are removed OR
•   Try and remove the enumerated rights by amending the Constitution in accordance with S128


Similarities between Australian and Canadian approaches
Canada
•   Numerous rights entrenched within its Constitution- some the same as Aus. Eg. Free/m speech
•   Rights can only be removed from the Constitution by holding a referendum.
•   Democratic and mobility rights are fully enforceable by the courts – parliament cannot override these rights through legislation

Australia
•   Some rights entrenched within the Commonwealth Constitution
•   Entrenched rights can only be removed by amending the Constitution (S128)-referendum
•   The rights protected by the Constitution are fully enforceable by the courts. Parliament cannot override a High Court ruling relating to these rights



Differences between Australian and Canadian approaches
Canada
•   The list of entrenched rights is extensive
•   There is a limit of the enforcement of Canadian rights (except democratic and mobility rights). Overriding laws by Parliament are only in force for 5 years.
•   The Canadian Charter provides that parliament can limit the rights protected in the Charter when it is ‘demonstrably justified in a free & democratic society’
•   The courts can read down  the impact of legislation
•   Courts can make an appropriate remedy such as damages when rights have been infringed
•   In a trial, a court can exclude evidence that has been obtained in violation of the Charter
•   The Canadian Supreme Court (Canada’s highest) can be asked to give opinion on whether proposed legislation will infringe on the Charter

Australia
•   There are only 5 protected rights specified in the Const. plus one implied right
•   None of the protected rights can be overridden by parliament
•   There is no similar limitation
•   The Australian courts have not adopted this approach to statutory interpretation
•   The courts approach has been to declare legislation invalid; no other remedy such as damages
•   Australia does not have a similar provision
•   The High Court will not give advisory opinions.

[costargh]

awesome thanks costa

i had a question- today my teacher was saying very firmly that the Constitution has nothing to do with State powers and that nowhere in the Constitution does it explicity state the powers of the State Parliament- they are defined by the residual powers.

gah i'm confused..i thought the constitution set out state powers too

Your teacher is right.

The Commonwealth of Australia Constitution Act 1900 (UK) makes no reference to State powers. Areas of law that are made exclusive to the Commonwealth in the Constitution are exclusive powers and everything else that is not exclusive is able to be legislated on by the States. That is why many specific powers are Concurrent powers; because not all specific powers are made exclusive to the Commonwealth.

Basically, all areas of law that are not made exclusive in the Constitution are areas of law that the state's can legislate in; that is they are either residual powers (the ones not mentioned in the Constitution at all because the Commonwealth has no power to legislate in them), or they are concurrent powers (areas that the Commonwealth and states can legislate in but are not exclusive to the Com. because they are not made exclusive).

Specific Powers---> All areas of law mentioned in Const. If not made exclusive, states can legislate in these areas
Exclusive Powers---> Areas of law making mentioned in Const. that only Com. can legislate in.
Concurrent Powers---> Areas of law mentioned in Const but not made exclusive. States and Com. can legislate in these areas
Residual Powers---> Areas of law NOT mentioned in Const and therefore only States can legislate in.