Teacher Resources – Unit 3
This teachers' support material includes a summary of the key knowledge and skills for Legal
Studies Units 3 and 4, a description of assessment tasks, a suggested timeline and sample
assessment tasks, with suggested answers. The assessment tasks are linked to the relevant
sections of the textbook.
Individual pages in the material are printable and can be copied for use as student
information or for student activities.
SUMMARY OF KEY KNOWLEDGE AND KEY SKILLS
UNIT 3
UNIT 3
UNIT 3
Outcome 1
Outcome 2
Outcome 3
DESCRIPTION OF ASSESSMENT TASKS
2011 SUGGESTED TIMELINE: Legal Studies Unit 3
2011 SUGGESTED timeline: Legal Studies Unit 4
2012 SUGGESTED TIMELINE: Legal Studies Unit 3
2012 SUGGESTED timeline: Legal Studies Unit 4
SAMPLE TASKS UNIT 3
CHAPTER 1 ASSESSMENT TASK 1
SUGGESTED SOLUTION – CHAPTER 1 ASSESSMENT TASK 1
CHAPTER 1 ASSESSMENT TASK 2
SUGGESTED SOLUTION – CHAPTER 1 ASSESSMENT TASK 2
CHAPTER 1 ASSESSMENT TASK 3
SUGGESTED SOLUTION – CHAPTER 1 ASSESSMENT TASK 3
CHAPTER 1 ASSESSMENT TASK 4
SUGGESTED SOLUTION – CHAPTER 1 ASSESSMENT TASK 4
CHAPTER 2 ASSESSMENT TASK 1
SUGGESTED SOLUTION – CHAPTER 2 ASSESSMENT TASK 1
CHAPTER 2 ASSESSMENT TASK 2
SUGGESTED SOLUTION – CHAPTER 2 ASSESSMENT TASK 2
CHAPTER 2 ASSESSMENT TASK 3
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
SUGGESTED SOLUTION – CHAPTER 2 ASSESSMENT TASK 3
CHAPTER 3 ASSESSMENT TASK 1
SUGGESTED SOLUTION – CHAPTER 3 ASSESSMENT TASK 1
CHAPTER 3 ASSESSMENT TASK 2
SUGGESTED SOLUTION – CHAPTER 3 ASSESSMENT TASK 2
CHAPTER 3 ASSESSMENT TASK 3
SUGGESTED SOLUTION – CHAPTER 3 ASSESSMENT TASK 3
CHAPTER 4 ASSESSMENT TASK 1
SUGGESTED SOLUTION – CHAPTER 4 ASSESSMENT TASK 1
CHAPTER 4 ASSESSMENT TASK 2
SUGGESTED SOLUTION – CHAPTER 4 ASSESSMENT TASK 2
CHAPTER 4 ASSESSMENT TASK 3
SUGGESTED SOLUTION – CHAPTER 4 ASSESSMENT TASK 3
CHAPTER 5 ASSESSMENT TASK 1
SUGGESTED SOLUTION – CHAPTER 5 ASSESSMENT TASK 1
CHAPTER 5 ASSESSMENT TASK 2
SUGGESTED SOLUTION – CHAPTER 5 ASSESSMENT TASK 2
CHAPTER 5 ASSESSMENT TASK 3
SUGGESTED SOLUTION – CHAPTER 5 ASSESSMENT TASK 3
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
SUMMARY OF KEY KNOWLEDGE AND KEY SKILLS
UNIT 3
Outcome 1
On completion of this unit the student should be able to explain the structure and role of
parliament, including its processes and effectiveness as a law-making body, describe why
legal change is needed, and the means by which such change can be influenced.
The outcome will contribute 25% of school-assessed coursework for Unit 3.
Key knowledge
•
•
•
•
•
•
•
the principles of the Australian parliamentary system: representative government,
responsible government and the separation of powers
the structure of the Victorian Parliament and the Commonwealth Parliament and the
roles played by the Crown and the houses of parliament in law-making
the reasons why laws may need to change
the role of the Victorian Law Reform Commission
the means by which individuals and groups influence legislative change, including
petitions, demonstrations and use of the media
the legislative process for the progress of a bill through parliament
strengths and weaknesses of parliament as a law-making body.
Key skills






define key legal terminology and use it appropriately
discuss, interpret and analyse legal information and data
explain the principles and structures of the Australian parliamentary system
use contemporary examples to explain the influences on legislative change
evaluate the effectiveness of methods used by individuals and groups to influence
change in the law
critically evaluate the law-making processes of parliament.
UNIT 3
Outcome 2
On completion of this unit the student should be able to explain the role of the
Commonwealth Constitution in defining law-making powers within a federal structure,
analyse the means by which law-making powers may change, and evaluate the effectiveness
of the Commonwealth Constitution in protecting human rights.
The outcome will contribute 50% of the school assessed coursework for Unit 3.
Key knowledge




the division of law-making power between state and Commonwealth parliaments under
the Commonwealth Constitution including specific (concurrent and exclusive) and
residual powers, and the impact of S109
restrictions imposed by the Commonwealth Constitution on the law-making powers of
state and Commonwealth parliaments
the process of change by referendum under S128 of the Commonwealth Constitution
and factors affecting its likely success
the way in which one successful referendum changed the division of law-making powers
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia






the role of the High Court in interpreting the Commonwealth Constitution
the significance of two High Court cases involving the interpretation of the
Commonwealth Constitution in terms of their impact on the law-making power of state
and Commonwealth parliaments
the capacity of the states to refer law-making power to the Commonwealth Parliament
the means by which the Commonwealth Constitution protects rights including structural
protection, express rights, implied rights
the significance of one High Court case relating to the constitutional protection of rights
in Australia
Australia’s constitutional approach to the protection of rights and the approach adopted
in one of the following countries: Canada, New Zealand, South Africa or the United
States of America.
Key skills
•
•
•
•
•
•
•
•
•
define key legal terminology and use it appropriately
discuss, interpret and analyse legal information and data
apply legal principles to relevant cases and issues
explain the role of the Commonwealth Constitution with respect to law-making powers
and the protection of rights
identify the types of law-making powers
explain the methods and processes of changing constitutional power
analyse the impact of referendums, High Court interpretation of the Constitution, and
the referral of powers on the division of law-making powers
evaluate the means by which rights of Australians are protected by the Commonwealth
Constitution, and the extent of this protection
compare the approach used to protect rights in a selected country with the approach
used in Australia.
UNIT 3
Outcome 3
On completion of this unit the student should be able to describe the role and operation of
courts in law-making, evaluate their effectiveness as law-making bodies and discuss their
relationship with parliament.
The outcome will contribute 25% of the school-assessed coursework for Unit 3.
Key knowledge
•
•
•
•
•
•
the ability of judges and courts to make law
the operation of the doctrine of precedent
reasons for interpretation of statutes by judges
effects of statutory interpretation by judges
strengths and weaknesses of law-making through the courts
the relationship between courts and parliament in law-making.
Key skills
•
•
•
•
define key legal terminology and use it appropriately
discuss, interpret and analyse legal information
apply legal principles to relevant cases and issues
describe the nature, importance and operation of courts as law-makers
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
•
•
•
analyse the impact of courts in law-making
critically evaluate the law-making processes of courts
discuss the relationships between law-making bodies.
Assessment
One or more of the following:
 a case study
 structured questions
 a test
 an essay
 a report in written format
 a report in multimedia format
 a folio of exercises.
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
DESCRIPTION OF ASSESSMENT TASKS
UNITS 3 AND 4
The assessment tasks as shown in the Study Design for Units 3 and 4 are listed below, with an
explanation of the requirements of each. These explanations are developed independently of the
Victorian Curriculum and Assessment Authority, but are in line with the overall requirements of the
study. The learning outcomes are linked to each assessment task.
The selection of assessment task by teachers should be based on the teaching program, the
resources available and the needs and interests of students. Teachers may also use more than one of
the tasks suggested for the assessment of an outcome if they prefer to use two or more smaller
tasks rather than a single task.
Assessment tasks should be a part of the regular teaching and learning program and should not add
unduly to student workload. Assessment tasks should be completed mainly in class and within a
limited time frame. The overall assessment program for the unit should include a variety of
assessment task formats, including provisions for authentication of student work, taking into
account the overall workload for students.
When schools develop assessment tasks they should inform each student, preferably in writing of:
 the work he/she needs to do
 how to submit the work
 timelines and deadlines for completing work
 procedures for obtaining an extension of time for completion of an assessment task
 procedures for obtaining special provision for school assessments
 class attendance requirements
 internal school appeal procedures.
Case study
This task requires the student to apply their knowledge of a particular outcome to an illustrative
case, either real or hypothetical. Questions may direct students as to what aspects to examine and
respond to.
Structured questions
This task requires the student to respond to a series of written questions on a particular outcome or
aspect of the outcome. These questions could begin with testing lower orders skills such as
definitions and descriptions, and work up to higher order skills such as evaluation and analysis.
Test
This task requires the student to respond to a series of short answer and/or extended response
questions that assess the chosen learning outcome, and are undertaken under test conditions. For
each outcome teachers may choose to administer one test that addresses the outcome or a series of
shorter tests that focus on specific aspects.
Essay
An essay is a sustained piece of writing that analyses issues. In a legal essay it is usually not
necessary to start with an introduction outlining the form of your essay and summarising your
interpretation of the question.
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
Guide to writing an essay
1
Read the topic carefully.
2
Work out all the separate parts to the question and decide on a logical order for answering
them.
3
Research your topic using:
 legal studies textbooks
 other books or texts from the local library or school library ·
 newspapers, journals, and magazine articles ·
 reports of investigations from law reform bodies or parliamentary committees; ·
 the Internet.
4
Draw up a basic plan of your essay.
5
Write your essay paying attention to: ·
 the topic of the essay
 your constructed plan
 the tasks required in your essay such as analysis, assessment etc. ·
 the word limits that may have been set.
If discussion or analysis is required for each paragraph you should:
 make a point
 refer the point to the question
 explain the point
 show the positive and negative aspects of the point made
 use an example if appropriate.
6
Write a conclusion to the essay.
7
Make sure any quotes or statistics are footnoted.
8
Write a bibliography of all references used in researching and writing the essay.
Teachers may choose to administer the task as an ‘open book’ essay, that is, students may consult
study notes or an essay plan during completion of the task.
Report in written format
Students are required to undertake research and collect information from electronic and hard copy
sources of information such as the Internet, television and radio programs, newspapers, with the
focus of the report being on the topic or outcome in question. The presentation of the report should
be in a written format. It is quite appropriate to include headings, subheadings, tables and diagrams
within a written report.
Report in multi-media format
Students are required to undertake research and collect information from electronic and hard copy
sources of information such as the Internet, television and radio programs, newspapers, with the
focus of the report being on the topic or outcome in question. The presentation of the report should
be in multimedia format, for example, presentation of:
 a set of overhead transparencies accompanied by a set of explanatory notes
 a HyperCard file or PowerPoint presentation accompanied by a set of explanatory notes
 a computer presentation using electronic software and supported by a set of explanatory notes.
Folio of exercises
This task requires the students to compile a folio of pieces of work that assess the chosen learning
outcome. Folio exercises could involve a range of activities such as working with texts, problem
solving exercises, short answer questions, critical appraisal of the presentation of a guest speaker,
videotape or court visit.
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
2011 SUGGESTED TIMELINE: Legal Studies Unit 3
Weeks
Term 1
Learning outcome
Learning activities
UNIT 3 Area of Study 1: Parliament and the citizen
4 weeks
Outcome 1
• the principles of the Australian
Explain the structure
parliamentary system:
representative government,
and role of parliament,
responsible government and the
including its processes
separation of powers
and effectiveness as a
• the structure of the Victorian
law-making body,
Parliament and the Commonwealth
describe why legal
Parliament and the roles played by
change is needed, and
the Crown and the houses of
parliament in law-making
the means by which
 the reasons why laws may need to
such change can be
change
influenced.
 the role of the Victorian Law Reform
Commission
 the means by which individuals and
groups influence legislative change,
including petitions, demonstrations
and use of the media
 the legislative process for the
progress of a bill through parliament
 strengths and weaknesses of
parliament as a law-making body.
Assessment tasks
Folio exercise
Case study
Essay
Area of Study 2: Constitution and the protection of rights
5 weeks
Outcome 2
• the division of law-making power
Structured
Explain the role of the
between state and Commonwealth
questions
Commonwealth
parliaments under the
Report
Constitution in
Commonwealth Constitution
defining law-making
including specific (concurrent and
powers within a
exclusive) and residual powers, and
federal structure,
the impact of S109
analyse the means by
• restrictions imposed by the
which law-making
Commonwealth Constitution on the
powers may change,
law-making powers of state and
and evaluate the
Commonwealth parliaments
effectiveness of the
• the process of change by referendum
Commonwealth
under S128 of the Commonwealth
Constitution in
Constitution and factors affecting its
protecting human
likely success
rights.
• the way in which one successful
referendum changed the division of
law-making powers
Term 2
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
Area of Study 2: Constitution and the protection of rights (cont’d)
4 weeks
Outcome 2
• the role of the High Court in
(continued)
interpreting the Commonwealth
Constitution
• the significance of two High Court
cases involving the interpretation of
the Commonwealth Constitution in
terms of their impact on the lawmaking power of state and
Commonwealth parliaments
• the capacity of the states to refer
law-making power to the
Commonwealth Parliament
• the means by which the
Commonwealth Constitution
protects rights including structural
protection, express rights, and
implied rights
• the significance of one High Court
case relating to the constitutional
protection of rights in Australia
• Australia’s constitutional approach
to the protection of rights and the
approach adopted in one of the
following countries: Canada, New
Zealand, South Africa or the United
States of America.
Area of Study 3: Role of the courts
3 weeks
Outcome 3
• the ability of judges and courts to
Describe the role and
make law
operation of courts in
• the operation of the doctrine of
law-making, evaluate
precedent
their effectiveness as
• reasons for interpretation of statutes
law-making bodies and
by judges
discuss their
• effects of statutory interpretation by
relationship with
judges
parliament.
• strengths and weaknesses of lawmaking through the courts
• the relationship between courts and
parliament in law-making.
Case study
Structured
questions
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
2011 SUGGESTED timeline: Legal Studies Unit 4
Weeks
Learning outcome
Term 2 (continued)
Learning activities
UNIT 4 Area of Study 1: Criminal cases and civil disputes
3 weeks
Outcome 1
 reasons for a court hierarchy
Describe and
 original and appellate
evaluate the
jurisdictions of the Victorian
effectiveness of
Magistrates’ Court, County Court,
institutions for the
and Supreme Court (Trial Division
resolution of civil
and Court of Appeal)
disputes and the
 role of the Victorian Civil and
adjudication of
Administrative Tribunal (VCAT)
criminal cases, and
 dispute resolution methods used
of alternative
by courts and VCAT, including
dispute resolution
mediation, conciliation,
methods.
arbitration and judicial
determination
 strengths and weaknesses of
dispute resolution methods used
by courts and VCAT
 strengths and weaknesses of the
way courts and VCAT operate to
resolve disputes.
Assessment tasks
Case study
Structured questions
Report
Term 3
Area of Study 2
10 weeks Outcome 2
•
Explain the processes
and procedures for
the resolution of
criminal cases and
civil disputes, and
•
evaluate their
operation and
application and
evaluate the
effectiveness of the
legal system.
•
•
•
•
elements of an effective legal
system: entitlement to a fair and
unbiased hearing, effective
access to the legal system and
timely resolution of disputes
the major features of the
adversary system of trial,
including the role of the parties,
the role of the judge, the need
for rules of evidence and
procedure, standard and burden
of proof and the need for legal
representation
strengths and weaknesses of the
adversary system of trial
major features of the
inquisitorial system of trial
possible reforms to the adversary
system of trial
criminal pre-trial procedures and
their purposes, including bail and
Folio exercise
Case study
Structured questions
Report
Essay
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
•
•






•
•
•
remand and committal hearings
general purposes of criminal
sanctions
an overview of three types of
sanctions and their specific
purposes
Supreme Court civil pre-trial
procedures, including pleadings,
discovery and directions hearings,
and the purposes of these
procedures
the purpose of civil remedies
types of civil remedies, including
damages and injunctions
the role of juries, and factors that
influence their composition
strengths and weaknesses of the
jury system
reforms and alternatives to the
jury system
problems and difficulties faced
by individuals in using the legal
system
recent changes and
recommendations for change in
the legal system designed to
enhance its effective operation.
problems and difficulties faced
by individuals in using the legal
system
Term 4
1 week
Outcome 2
(Continued)
3 weeks
Revision
•
recent changes and
recommendations for change in
the legal system designed to
enhance its effective operation.
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
2012 SUGGESTED TIMELINE: Legal Studies Unit 3
Weeks
Learning outcome
Learning activities
Assessment
tasks
Term 1
UNIT 3 Area of Study 1: Parliament and the citizen
Outcome 1
• the principles of the Australian
4 weeks
Explain the structure
parliamentary system:
and role of parliament,
representative government,
including its processes
responsible government and the
and effectiveness as a
separation of powers
law-making body,
• the structure of the Victorian
describe why legal
Parliament and the Commonwealth
change is needed, and
Parliament and the roles played by
the means by which
the Crown and the houses of
such change can be
parliament in law-making
influenced.
 the reasons why laws may need to
change
 the role of the Victorian Law Reform
Commission
 the means by which individuals and
groups influence legislative change,
including petitions, demonstrations
and use of the media
 the legislative process for the
progress of a bill through parliament
 strengths and weaknesses of
parliament as a law-making body.
Folio exercise
Case study
Essay
Area of Study 2: Constitution and the protection of rights
5 weeks
Outcome 2
• the division of law-making power
Structured
Explain the role of the
between state and Commonwealth
questions
Commonwealth
parliaments under the
Report
Constitution in
Commonwealth Constitution
defining law-making
including specific (concurrent and
powers within a
exclusive) and residual powers, and
federal structure,
the impact of S109
analyse the means by
• restrictions imposed by the
which law-making
Commonwealth Constitution on the
powers may change,
law-making powers of state and
and evaluate the
Commonwealth parliaments
effectiveness of the
• the process of change by referendum
Commonwealth
under S128 of the Commonwealth
Constitution in
Constitution and factors affecting its
protecting human
likely success
rights.
• the way in which one successful
referendum changed the division of
law-making powers
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
Term 2
Area of Study 2 (cont’d)
4 weeks
Outcome 2
(continued)
•
•
•
•
•
•
Area of Study 3: Role of the courts
3 weeks
Outcome 3
Describe the role and
operation of courts in
law-making, evaluate
their effectiveness as
law-making bodies and
discuss their
relationship with
parliament.
•
•
•
•
•
•
the role of the High Court in
interpreting the Commonwealth
Constitution
the significance of two High Court
cases involving the interpretation of
the Commonwealth Constitution in
terms of their impact on the lawmaking power of state and
Commonwealth parliaments
the capacity of the states to refer
law-making power to the
Commonwealth Parliament
the means by which the
Commonwealth Constitution
protects rights including structural
protection, express rights, and
implied rights
the significance of one High Court
case relating to the constitutional
protection of rights in Australia
Australia’s constitutional approach
to the protection of rights and the
approach adopted in one of the
following countries: Canada, New
Zealand, South Africa or the United
States of America.
the ability of judges and courts to
make law
the operation of the doctrine of
precedent
reasons for interpretation of statutes
by judges
effects of statutory interpretation by
judges
strengths and weaknesses of lawmaking through the courts
the relationship between courts and
parliament in law-making.
Case study
Structured
questions
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
2012 SUGGESTED timeline: Legal Studies Unit 4
Weeks
Learning outcomes
Term 2 (continued)
Learning activities
UNIT 4 Area of Study 1: Criminal cases and civil disputes
3 weeks
Outcome 1
 reasons for a court hierarchy
Describe and
 original and appellate
evaluate the
jurisdictions of the Victorian
effectiveness of
Magistrates’ Court, County Court,
institutions for the
and Supreme Court (Trial Division
resolution of civil
and Court of Appeal)
disputes and the
 role of the Victorian Civil and
adjudication of
Administrative Tribunal (VCAT)
criminal cases, and
 dispute resolution methods used
of alternative
by courts and VCAT, including
dispute resolution
mediation, conciliation,
methods.
arbitration and judicial
determination
 strengths and weaknesses of
dispute resolution methods used
by courts and VCAT
 strengths and weaknesses of the
way courts and VCAT operate to
resolve disputes.
Assessment tasks
Case study
Structured questions
Report
Term 3
Area of Study 2
10 weeks
•
Outcome 2
Explain the
processes and
procedures for the
resolution of criminal
•
cases and civil
disputes, and
evaluate their
operation and
application and
evaluate the
effectiveness of the
legal system.
•
•
•
•
elements of an effective legal
system: entitlement to a fair and
unbiased hearing, effective
access to the legal system and
timely resolution of disputes
the major features of the
adversary system of trial,
including the role of the parties,
the role of the judge, the need
for rules of evidence and
procedure, standard and burden
of proof and the need for legal
representation
strengths and weaknesses of the
adversary system of trial
major features of the
inquisitorial system of trial
possible reforms to the
adversary system of trial
criminal pre-trial procedures and
their purposes, including bail and
remand and committal hearings
Folio exercise
Case study
Structured questions
Report
Essay
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
•
•






•
•
•
general purposes of criminal
sanctions
an overview of three types of
sanctions and their specific
purposes
Supreme Court civil pre-trial
procedures, including pleadings,
discovery and directions hearings,
and the purposes of these
procedures
the purpose of civil remedies
types of civil remedies, including
damages and injunctions
the role of juries, and factors that
influence their composition
strengths and weaknesses of the
jury system
reforms and alternatives to the
jury system
problems and difficulties faced
by individuals in using the legal
system
recent changes and
recommendations for change in
the legal system designed to
enhance its effective operation.
problems and difficulties faced
by individuals in using the legal
system
Term 4
1 week
Outcome 2
(Continued)
3 weeks
Revision
•
recent changes and
recommendations for change in
the legal system designed to
enhance its effective operation.
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
SAMPLE TASKS UNIT 3
The suggested solutions to assessment tasks following each task are suggestions of what might be
included in responses to assessment task questions. Students aiming for high marks in the exam
should read widely.
CHAPTER 1 ASSESSMENT TASK 1
Folio exercise — chapter 1
Unit 3 — Outcome 1
Explain the structure and role parliament, including its processes and effectiveness as a law-making
body, describe why legal change is needed and the means by which such change can be influenced.
Law-making by parliament — principles of the Australian parliamentary
system
Write responses to the following questions.
1
Explain the difference between government and parliament. 2 marks
2
Describe the principle of the separation of powers. 3 marks
3
Discuss the role of the Senate and the effectiveness of the Senate in its role. 5 marks
Total 10 marks
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
SUGGESTED SOLUTION – CHAPTER 1 ASSESSMENT TASK 1
1
The government is the political party that governs the country (or state), the party that
achieves the largest number of members voted into the lower house, that is the House of
Representatives at a federal level and the Legislative Assembly at a state level. All members of
parliament who belong to this political party form the government. Parliament consists of all
members of both houses, from all political parties, plus the Crown’s representative.
Government formulates policies, which may become laws. Government does not make laws — this
is the role of parliament. Parliament is the law-making body.
2
The principle of the separation of powers refers to the fact that there are three types of
power under the Constitution, and some of these powers must not be combined. The three types
of power are:

legislative power — the power to make laws, which resides with parliament

executive power — the power given to the governing body responsible for administering the
laws and carrying out the business of government through such bodies as government
departments, statutory authorities and the defence forces. The executive arm is accountable to
the legislative arm of government. Under the Constitution the executive power is placed in the
hands of the executive (the governor-general) but in practice it is carried out by the government

judicial power — the power given to courts and tribunals to enforce the law and settle disputes.
Unlike the other powers, which are linked, this power is kept quite independent and separate.
The legislative power and the executive power are combined in Australia. The Queen or her
representative, the Governor-General, is part of the structure of parliament. The Prime Minister is a
Member of Parliament and therefore part of legislative power. Judicial power, however, must be
kept separate. This was thought necessary to maintain the independence of courts. It would
therefore, be unconstitutional for courts to take on a legislative role, or for parliament to take on a
judicial role.
See pages 26 to 28 of Justice and Outcomes 11th edition for more detail.
3
The Senate is seen as both a states’ house and a house of review. It is a states’ house
because each state has equal representation, regardless of the population of that state. There
are 76 senators. Each state elects 12 representatives and there are two representatives elected
from each territory. Equal representation of states means that the more populated states do
not dominate the Senate as they do in the lower house where there are more members from
NSW and Victoria than from other states. Equal representation better enables senators to
represent the needs of their states as each state can bring equal influence to bear on a
situation. However, in practice senators tend to vote according to their party, rather than the
needs of their states, as do the members of the House of Representatives. Senators are
generally required to be loyal to their party and support it in the direction it wishes to take. If
each senator decided to vote according to the particular needs of their state, it may be difficult
for government legislation to be passed, as it may not have enough support.
The Senate is also called a house of review because most proposed laws are introduced into the
House of Representatives, and once they have been passed by that house they are passed on to
the Senate for the same process to occur. This is seen as a review by the Senate of proposed
bills passed by the House of Representatives (although some bills are introduced into the
Senate). If the governing party does not have a majority in the Senate the Senate is likely to
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
check the proposed laws more thoroughly and vigorous debate will often take place, especially
if the proposed laws are controversial. In this instance, therefore, the Senate is more effective
as a house of review. If, however, the government has a majority in the Senate as well as the
House of Representatives, then laws that have been initiated in the House of Representatives by
the government are likely to pass through the Senate quickly. In this instance, the Senate can be
seen as a ‘rubber stamp’, merely endorsing the decisions of the House of Representatives. On
some occasions members of the governing party or coalition may decide to cross the floor to
vote with the opposition. For example, in November 2005, Senator Barnaby Joyce (National
Party) crossed the floor to vote against changes in the law relating to voluntary student
unionism. However, the Family First representative voted with the government and the bill was
passed.
Following the 2010 federal election, the government needs the support of the Greens member of
the House of Representatives as well as the three independents to pass a bill in the House of
Representatives before it is sent to the Senate. The Greens will hold the balance of power in the
Senate with nine Senators after July 2011.
Laws can also be initiated in the Senate and reviewed in the House of Representatives (except
money bills).
Chapter 1 assessment of task 1
Questions
1 Explain the difference between government
and parliament. 2 marks
2 Describe the principle of the separation of
powers. 3 marks
3 Discuss the role of the Senate and the
effectiveness of the Senate in its role. 5 marks
Very
high
2
High
Medium
Low
0.5
Very
low
0
1.5
1
3
2.5
5
4
Comments
0
2
1.5
1
0
3
2
1
0
Total 10 marks
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
CHAPTER 1 ASSESSMENT TASK 2
Folio exercise — chapter 1
Unit 3 — Outcome 1
Explain the structure and role parliament, including its processes and effectiveness as a law-making
body, describe why legal change is needed and the means by which such change can be influenced.
Law-making by parliament — principles of the Australian
parliamentary system
1
‘The Australian parliamentary system is based on a number of key
principles that we have followed from other countries. As such it is one of the
best in the world.’ Key features of the British system, which we inherited in
Australia, are responsible government and representative government. What do
these terms mean? 4 marks
2
French philosopher Montesquieu stated that the separation of powers was essential to
protect the stability of the government and the freedom of the people. Explain the doctrine of the
separation of powers. To what extent does this apply to the Australian parliamentary system? 3 + 3 =
6 marks
3
Australia continues to be a constitutional monarchy, with the Crown playing an important
role in our parliamentary system. Describe two roles performed by the Crown in the Australian
parliamentary system. 2 marks
4
Compare the structure of the Victorian Parliament with the structure of the Commonwealth
Parliament. 2 marks
5
‘While our Commonwealth Parliament operates under a bicameral system, it would be a
more effective law-maker if it consisted of only one house.’ Discuss this statement, making reference
to the roles of each of the two houses of Commonwealth Parliament. Include in your response some
consideration of the extent to which the upper house is fulfilling its role. 6 marks
Total 20 marks
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
SUGGESTED SOLUTION – CHAPTER 1 ASSESSMENT TASK 2
1
Representative government refers to a government which represents the views of the
majority of the people. The people choose representatives to represent them in parliament by
voting for them. If the government does not represent the needs of the people the people can vote
out their representative at the next election. Responsible government refers to the government’s
responsibility to the voters. Ministers are drawn from within the government and they are
responsible to the government. A minister can be called on to explain his or her actions or the
actions of their department. This is referred to as ministerial accountability. Members of parliament
have the opportunity to question ministers about the activities of their departments. It is the
responsibility of ministers to carry out their duties with integrity and propriety or resign. Theo
Theophanous, a minister in the Victorian Government, resigned in October 2008, when there were
rumours about him being involved in sexual misconduct. If the government loses the support of the
lower house it must resign. The government is therefore responsible to parliament and parliament is
responsible to the people.
Since the 2010 election, the Labor Government must show the House of Representatives that it has
the confidence of the house. If it cannot do that, it must resign. The three independents and the
Greens member of the House of Representatives have all promised to support the Labor
Government if there is a vote of no confidence in the house.
2
The doctrine of the separation of powers states that the three types of power held by
the parliamentary system should be exercised by different bodies and kept separate, so that no
one body has absolute power, or can interfere with the control or operations of another branch.
The three types of power are:

legislative power — the power to make laws, which is held by parliament

executive power — the power to administer laws and manage the business of government,
which is held by the Governor-General and exercised by government

judicial power — the power to settle disputes and enforce the law, which is held by courts and
tribunals.
In Australia, there is some overlap between the legislative and executive powers, as the
Governor-General is a member of both; also, government is a sub-set of parliament. However, the
judicial power remains separate and the courts remain independent of parliament and the
executive.
3
The Crown performs the role of giving royal assent to bills, by signing the proposed law. The
Governor-General performs this role at federal level, and governors at state level. In addition, the
Crown officially appoints, and can dismiss ministers and the Prime Minister/Premier. The Crown
dissolves the lower house of parliament to affect a general election. The Crown officially opens and
closes parliamentary sessions.
4
The structure of the Victorian Parliament and the Commonwealth Parliament is very similar
in that they both consist of the Queen’s Representative, an upper house and a lower house. They
differ in the names of each of these – the structure of the Victorian Parliament being the governor,
the Legislative Council and the Legislative Assembly. The Commonwealth Parliament being the
governor-general, the House of Representatives and the Senate. Each member of the House of
Representatives is elected for a term of three years, at the end of which time there is an election and
the people are required to vote for all members of the House of Representatives. The senators are
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
elected for a term of six years. The six year term of half of the senators comes to a close every three
years. There are, therefore half-Senate elections every three years.
5
The bicameral system provides a system of two houses, with one house being able to review
the passage of bills by the other house. A one house system, such as operates in Queensland, would
mean there is less opportunity for review. The House of Representatives, the lower house of
Commonwealth Parliament, has a number of key roles. Most bills are initiated in the House of
Representatives. It is the people’s house, and should represent the views of the people who voted
members into parliament. It is also the seat of government, as the political party who has the
majority of seats in the lower house forms government (or as is the case following the 2010 election,
the Labor Party, who gained the support of three independents and one member of the Greens to
form a majority.
The Senate, the Upper house of Commonwealth Parliament, operates as the house of review. As
most bills are initiated in the House of Representatives, the Senate then reviews these bills, and
must also pass them before they become law. However, if the government also has control of the
upper house, then the effectiveness of this function is limited, as bills could be passed without much
scrutiny. Conversely, if the government does not have control of the upper house, then it could work
as an obstructionist house, refusing to pass government bills.
Following the 2010 election, the Greens will have nine representatives in the Senate (after July 2011)
and they will hold the balance of power. This will mean that the government will generally need the
support of the Greens for legislation to be passed.
Another key role of the Senate is to be the State’s House — to represent state’s interests. As each
state votes in 12 senators (and two per territory), regardless of the population of the state, then all
states are represented equally in the Senate. This safeguards against the more populous states being
able to unduly influence the passage of legislation through the Senate that may be to the detriment
of the smaller states. However, Senators may choose to vote along party lines, rather than in the
interests of their state, thereby not fulfilling the role of being a State’s House. The Senate may also
initiate bills, except for money bills, which must be initiated in the lower house.
Chapter 1 assessment of task 2
Questions
1 Meaning of representative government and
responsible government. 4 marks
2 Explanation of separation of powers and
application in Australia. 6 marks
3 Description of two roles of the Crown. 2
marks
4 Comparison of structure of Victorian
Parliament and Commonwealth Parliament. 2
marks
5 Discussion of roles of both houses of
Commonwealth Parliament and extent to
which Senate fulfils its roles 6 marks
Very
high
4
High
Medium
Low
1
Very
low
0.5
3
2
6
54
2
Comments
0
3
2
1
0
1.5
1
0.5
0
0
2
1.5
1
0.5
0
0
6
54
3
2
1
0
Total 20 marks
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
CHAPTER 1 ASSESSMENT TASK 3
Folio exercise — chapter 1
Unit 3 — Outcome 1
Explain the structure and role parliament, including its processes and effectiveness as a law-making
body, describe why legal change is needed and the means by which such change can be influenced.
Role of the Crown
1
2
Explain the role of the Crown. 3 marks
What are reserve powers of the Crown? 2 marks
Balance of power in the Senate
3
What does it mean when it is said that a minor party, or independent, holds the
balance of power in the Senate? 2 marks
4
Describe the composition of the Senate by political party after July 2011. 1 mark
5
What are the main roles of the House of Representatives and the Senate? 3 marks
6
How can the current composition of the Senate affect the passage of bills
through the parliament? Explain. 4 marks
Total 15 marks
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
SUGGESTED SOLUTION – CHAPTER 1 ASSESSMENT TASK 3
1
The Crown is represented in Australia by the Governor-General at a federal level and the
governors at a state level. The governor-general acts as the head of state and has to ensure that the
government can continue to govern. Under the Commonwealth Constitution, the executive power of
the Commonwealth is vested in the Queen and exercisable by the governor-general. In practice this
executive power (administrative power) is exercised by the prime minister and the government.
The governor-general has the responsibility of appointing the executive council. The executive
council is made up of the governor-general and relevant ministers. Its role is to give royal assent to
bills that have been passed through parliament before they are proclaimed into law. At a federal
level, the governor-general can withhold royal assent in certain circumstances. A state governor
does not have this power.
The governor-general has other roles, which include designating times of parliamentary sessions and
bringing them to an end, appointing judges and exercising reserve powers.
2
Reserve powers are powers held by the governor-general and governors of the states that
can be exercised without the consent of the government, and are not listed in the Constitution. For
example, if a government was voted out of office and refused to leave office, the governor-general
could step in and the elected government was in power. If the government lost the confidence of
the House of Representatives, the governor-general could require the government to resign and a
general election would be called.
3
The house of government is the House of Representatives where the political party holding
the majority of seats forms government. The government, therefore, has the required number of
sitting members to ensure a bill is passed through the house, although amendments may be
suggested during its passage through the House of Representatives. It is often the case that the
government does not hold a majority of seats in the Senate. Sometimes the opposition (the party
with the most members other than the government) holds a clear majority, but on other occasions
both major parties have the same number of votes and the rest are held by a minor party or
independents. In this instance, the government needs to seek the support of the minor party or
independents in order to pass a bill through the Senate. This is referred to as the minor party or
independents holding the balance of power. Following the 2010 election the Greens will hold the
balance of power in the Senate (after July 2010) with nine Greens senators.
4
The composition of the Senate after July 2011 is:
 Australian Greens 9
 Australian Labor Party 31
 Independent (Nick Xenophon) 1
 DLP (Democratic Labor Party) 1
 Coalition (Liberal Party and National Party) 34
Total 76
5
The main role of the House of Representatives is to initiate laws. The government holds the
majority of seats in the House of Representatives and as the government of the day, decides what
laws need to be changed or amended and what new laws are required. The government
departments investigate particular areas of law and advise the government. People may try to
influence the government to change the law, and as representatives of the people the government
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
must try to incorporate the views of the majority in any law-making. The Senate also initiates
changes in the law (usually when the relevant minister is a senator). The government is responsible
for deciding how revenue will be spent and a bill setting out government spending must be passed
through both the House of Representatives and the Senate. Money bills can only be initiated in the
House of Representatives. It is also the role of the House of Representatives and the Senate to
ensure that bills are fully debated and administration is scrutinised. Members of the public can ask
questions of members of parliament. The Senate is known as a house of review because most bills
are initiated in the House of Representatives and scrutinised and vigorously debated in the Senate.
The Senate also has the role of a states’ house because each state has an equal number of senators
(12 for each state and two for each territory) and should represent the needs of their states.
6
The Australian Labor Party holds 31 seats in the Senate and the Coalition (Liberal and
National Parties) holds 32 seats. This is 65 seats with 11 seats held by the Greens (9), one DLP and
one independent. As the major parties usually vote on party lines (in line with party doctrine), this
means that the Labor Party must gain the support of other senators in order to pass a bill.
Sometimes there is bipartisan support which means both major parties agree to pass the bill.
Sometimes there is vigorous debate and amendments are made before the opposition will support
the bill. If however, the Liberal Party refuses to support a bill, then the Labor Party is dependent on
other senators to support the bill. In many instances, the Greens would support Labor Party bills
(giving them 40 votes). The Liberal Party, National Party and Country Liberal Party are likely to vote
together (giving them 34 votes). The Greens hold considerable power because they may decide to
vote against the government.
There will need to be considerable negotiation for each bill. A compromise will need to be reached
for a bill to be passed. This process can mean that a bill is considerably watered down. It could also
result in a bill that is better for the people as a whole because it covers all situations.
Chapter 1 assessment of task 3
Criteria
1 Explain the role of the Crown. 3
marks
2 What are reserve powers of the
Crown? 2 marks
3 Explanation of the balance of power
2 marks
4 Current composition of the Senate
1 mark
5 Roles of House of Representatives
and the Senate 2 marks
6 Affect of composition of the Senate
on the passage of bills through
parliament 5 marks
Very
High
3
High
Medium
Low
1.5
Very
Low
1
2.5
2
2
1.5
2
Comments
0
1
0.5
0
0
1.5
1
0.5
0
0
1
1
0.5
0.5
0
0
2
1.5
1
0.5
0
0
5
4
3
2
1
0
Total Marks
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
CHAPTER 1 ASSESSMENT TASK 4
Folio exercise — chapter 1
Unit 3 — Outcome 1
Explain the structure and role parliament, including its processes and effectiveness as a law-making
body, describe why legal change is needed and the means by which such change can be influenced.
A hung parliament
It's the House that determines who governs
The Age, 10 September 2010
Mandate or not, the Gillard government is legitimate
THE Gillard government, according to opposition frontbencher George Brandis, ''has as much
legitimacy as the Pakistani cricket team''. It is a bizarrely misleading analogy, and a man who serves
the Coalition as shadow attorney-general ought to know better than to invoke such a comparison.
Pakistan's cricketers have come under suspicion after accusations of match-fixing and secret deals
with bookmakers. Where is the supposed secrecy or subterfuge in the process that this week
allowed Ms Gillard to advise the Governor-General that she is able to form a government? The Prime
Minister's dealings with the Greens and independent MPs who have declared their support for her
government - including any spending decisions arising from those discussions - have been publicly
explained. The only secretive behaviour in the 17 days of negotiation ensuing from Australia's
inconclusive election was engaged in by the opposition, which refused to release the costings for its
election promises. And when the independents released the Treasury's assessment of those
costings, the reason for the secrecy became clear: the Coalition's claim to be able to shear $11.5
billion from the budget's bottom line was out by a whopping $10.6 billion.
As Senator Brandis is surely aware, in countries like Australia with Westminster-style parliamentary
systems, governments do not derive their authority from winning a majority of votes, or even from
the governing party winning a majority of seats. The test is whether the government can muster
enough votes in the more powerful legislative chamber to survive confidence motions - and Labor's
pledges of support from three independents and Greens MP Adam Bandt mean that it can. Senator
Brandis may object that the election did not give Labor a mandate, which is true, but it conferred no
mandate on the Coalition either. There has, however, been an expression of the will of the people,
and it is the hung Parliament. It is those who describe the government's negotiated majority on the
floor of the House as illegitimate who are flouting the will of the people, not those who are trying to
make it work. And in the absence of House votes showing that it cannot work, any call for a new
election amounts to the supremely arrogant assertion that the people got it wrong the first time.
It is nearly seven decades since Australia last had a Federal Parliament in which independents
wielded the balance of power in the House, but several states have recently had stable minority
governments. There is no reason why the Gillard government should not be able to emulate their
example, and indeed implement legislative reform, as the first Bracks government was able to do in
Victoria. The government should be allowed to attempt to implement an agenda without having to
defend its legitimacy. Nor should the Coalition have had to do so if it had been able to secure
enough votes to govern. Those who comprise the negotiated majority, however, ought also to
accept that there are constraints on their actions.
Ms Gillard has reportedly offered the post of regional development minister to one of the rural
independent MPs backing her government, Rob Oakeshott. Mr Oakeshott is considering the offer,
but has also said his guarantee of support is limited to confidence motions and supply. If that
remains the case, the offer of a ministerial post should be withdrawn. Ministers, even if not of
cabinet rank, should collectively uphold the government's program, and any departure from this
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
practice weakens cabinet government. It has been suggested Mr Oakeshott could withdraw from
meetings when matters not affecting his portfolio, or on which he may wish to vote against the
government, are discussed. There is a precedent for this in South Australia, but it hardly inspires
confidence in stability of government - something to which Mr Oakeshott says he is committed.
Read the newspaper article and answer the questions.
1
What is the Australian parliamentary system based on? 1 mark
2
What is a bicameral system? 1 mark
3
Explain the makeup of the House of Representatives and the Senate (after July 2011),
describing the number of representatives from the political parties and independents in each house,
following the 2010 federal election. Explain why Labor was able to form government. 5 marks
4
Do you think the Gillard Labor government is legitimate? Explain? 2 marks
5
What is a mandate? Do you think either party has a mandate? Explain. 2 marks
6
Discuss the consequences of a hung parliament with respect to the government being able
to bring into law promises made during the election campaign. 4 marks
Total 15 marks
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
SUGGESTED SOLUTION – CHAPTER 1 ASSESSMENT TASK 4
1
The British Westminster system, which was adopted in the Commonwealth of Australia
Constitution Act 1900 (UK).
2
The bicameral system is a system of an upper house and a lower house. At a federal level,
the lower house is the House of Representatives and the upper house is the Senate.
3
The Senate has 76 members. The numbers of each political party and independents after
July 2011 will be:
 Labor 31
 Greens 9
 Coalition 34
 Democratic Labor Party 1
 Independent (Nick Xenophon) 1.
There are 150 members of the House of Representatives. The numbers of each political party and
independents are:
 Labor 72
 Coalition 72
 Independents 3 (declared to support Labor)
 The Greens 1 (declared to support Labor)
 Independent 1 (declared to support the Coalition)
 WA National (declared to support the Coalition)
This means Labor has the support of 76 and the Coalition has the support of 74. The government is
formed by the political party that is able to promise the support of the most members of the House
of Representatives. As Labor was able to promise the support of 76 members of the House of
Representatives they were able to form government.
4
The Gillard Labor Government is legitimate because they were able to promise the majority
of seats (with the support of two independents and the one Greens member) in the House of
Representatives and therefore able to have enough votes in the House of Representatives to be able
to survive a no-confidence vote put to the house by the Coalition.
5
A mandate is the power granted by the electorate to a government to put a legislative
program to the parliament in accordance with election promises. Following the 2010 election,
neither party has been granted a mandate, because neither party has a strong majority to show that
the electorate has full confidence in the party and has voted them into office with the understanding
that the government will implement the promises made during the election campaign.
6
The federal government will not be able to introduce proposed laws into parliament and
expect them to be passed by either the lower or upper house. Each time a government bill is
presented to the parliament, unless it is straight forward and will be supported by all members of
parliament, it will be necessary for the government to negotiate with the Greens member and the
three independents to ensure that they will vote in favour of the bill. The government will also have
to negotiate with the Greens in the Senate to ensure the passage of a bill. This will ensure vigorous
debate about contentious issues but could mean that the government’s legislative program will be
seriously watered down and may not achieve its objectives.
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
Chapter 1 assessment of task 4
Criteria
1 What is the Australian
parliamentary system based on? 1
mark
2 What is a bicameral system? 1
mark
3 Explain the makeup of the House of
Representatives and the Senate (after
July 2011), describing the number of
representatives from the political
parties and independents in each
house, following the 2010 federal
election. Explain why Labor was able
to form government. 5 marks
4 Do you think the Gillard Labor
government is legitimate? Explain? 2
marks
5 What is a mandate? Do you think
either party has a mandate? Explain.
2 marks
6 Discuss the consequences of a hung
parliament with respect to the
government being able to bring into
law promises made during the
election campaign. 4 marks
Very
High
1
High
Medium
Low
0.5
Very
Low
0
1
0.5
1
1
5
Comments
0
0.5
0.5
0
0
4
3
2
1
0
2
1.5
1
0.5
0
0
2
1.5
1
0.5
0
0
4
3
2
1
0.5
0
Total 15 marks
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
CHAPTER 2 ASSESSMENT TASK 1
Case study/folio exercise — chapter 2
Unit 3 — Outcome 1
Explain the structure and role parliament, including its processes and effectiveness as a law-making
body, describe why legal change is needed and the means by which such change can be influenced.
Law-making through parliament
Tightening of hoon laws
Under hoon laws passed by the Victorian Parliament in 2005, the police can seize cars from ‘hoons’
who drag race or do street burnouts. The cars can be held for 48 hours. For a second offence, the
car can be taken for three months and repeat offenders can have their car or motorbike taken
permanently. Victoria Police have found that the 48 hours’ penalty does not work because a hoon
can offend on Friday and pick up the car on a Monday.
In the four years following the introduction of these laws, 11 376 cars have been impounded for a
first offence, 583 for a second offence and 184 for a third offence. In August 2010, a serial hoon
driver had his car crushed as the Victorian Government moved to strengthen anti-hoon legislation.
Police Minister Bob Cameron said ‘With a road toll that is higher than the same time last year and as
part of our ongoing efforts to save lives on the roads, we are taking our laws further, which will see
hoon cars such as this one crushed for good’.
Under the Road Safety Amendment (Hoon Driving) Bill 2010, the police will be able to hold an
impounded vehicle for seven days for a first offence (extended from 48 hours) and 28 days for a
second offence.
Read the above information and write responses to the following questions.
1
Explain the reason for this change in the law coming about. Suggest one other reason why
laws may need to change. 4 marks
2
Discuss a method of influencing a change in the law that may have been relevant to the
changes in the law referred to above. 4 marks
3
Describe the process by which these vehicle impoundment and anti-hoon laws would have
been passed through the Victorian Parliament. 6 marks
4
Critically evaluate the law-making process of parliament. 6 marks
Total 20 marks
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
SUGGESTED SOLUTION – CHAPTER 2 ASSESSMENT TASK 1
1
The original change in the law came about through the Victorian Parliament seeing a need to
protect the Victorian community from the harm caused by hoon drivers on our roads. Hoon drivers
had been found to contribute to deaths and serious injuries in a number of cases in the past few
years, so parliament acted to pass legislation in order to deter these drivers from engaging in this
form of dangerous driving. The amendment was introduced to tighten hoon laws because the
penalty time of 48 hours was seen as inadequate. Hoons could offend on Friday and pick up their car
on Monday, suffering little inconvenience.
One other reason why laws may need to change is that there have been changing values in
the community. In order to be effective, the law must represent the views of the majority of the
community, so if these views and values change, then the law must change accordingly. For
example, growing acceptance of de facto and same-sex relationships has helped to bring about
changes to give these couples more legal rights.
Another reason why laws may need to change is to keep pace with changes or
advancements in technology. As new situations arise in response to changes in technology, the law
needs to adapt to cover new situations. For example, advancements in stem cell research have seen
the parliament needing to pass legislation to monitor and govern the processes involved in this
procedure. Advances in technology have also led to the making of very fast cars which can be highly
dangerous.
2
In this example, there may have been pressures for change that came from groups such as
residents group, traffic accident groups, and the public in general, who exerted pressure for this
change because of the deaths occurring as a result of this dangerous behaviour. Victoria Police will
have informed the minister about the need for change to the original laws to give them more power
to impound the cars for longer. The most important method of influencing a change in the law
would have been the media. The public and consequently the minister would have been made
aware of the need for further changes in the law through articles in the media about hoon drivers,
more deaths on the roads and the effectiveness of current laws.
3
Once the need for a change in the law has been established the cabinet would debate what
changes were viable and would fit into their legislative schedule. Once a proposal has been approved
by cabinet the policy proposal is sent to the parliamentary counsel for a draft bill to be drafted. The
cabinet’s legislation committee will check the draft bill before final cabinet approval. The bill is then
introduced into parliament (usually in the lower house, depending on which house the relevant
minister is a member of).
After the introduction the bill is read for the first time (the long title), copies of the bill are
circulated to all members of the house so they can scrutinise the proposed change in the law.
At the second reading the relevant minister outlines the bill and explains the purpose of the
bill. This is followed by debate with points of view and suggestions being put by both the major
parties and any independents.
After the second reading the bill is usually referred to the Scrutiny of Acts and Regulations
Committee (Victoria) or the Senate Scrutiny of Bills Committee (Commonwealth), or a specialist
committee to gather evidence relating to the bill.
The bill may then go through the committee stage (also called consideration in detail),
where informal discussion occurs and where the bill is debated clause by clause. Amendments may
be suggested at this stage. The committee’s report is then adopted and the long title is read at the
third reading.
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
If the bill passes all these stages it is passed on to the other house, where all the stages are
repeated. Once the bill has passed the second house, the bill is certified and it is given Royal Assent
by the governor (as this is a state matter). The bill is then proclaimed and becomes law.
4
There are a number of strengths and weaknesses of parliament as a law-making body.
Parliament is elected by the people and should therefore be representative of the people’s wishes. It
has the responsibility to follow the wishes of the majority to the best of its ability. The members of
parliament are elected and they are responsible to parliament. The government is the political party
with the majority of members of parliament. It is the government that decides what laws should be
introduced to parliament and how money should be spent. If the government gets out of step with
the wishes of the people, then it is likely to be voted out of office at the following election. However,
there are often conflicting attitudes in the community about a particular issue. For example, some
people believe that everyone should have the right to decide when they want to die and voluntary
euthanasia should be allowed. Others are vehemently opposed to voluntary euthanasia. The
government of the day has to decide which course of action is possible and which will be the most
popular with the electorate. The leader of the Greens, Bob Brown, has suggested that changes in
the law should occur at a federal level to allow the territories to pass their own laws in relation to
voluntary euthanasia. Following a Northern Territory bill being passed in the late 1990s, Senator
Andrews introduced a bill (which was passed) taking away the power of the territories to pass laws
in relation to euthanasia, thereby making the Northern Territory act invalid. This is a very
controversial issue, with strong opposing views. Prime Minister Julia Gillard has said she is
considering introducing legislation in relation to this issue and allowing a conscience vote by the
members of parliament.
There were many conflicting attitudes about the Victorian Abortion Law Reform Bill 2008,
which, after much debate, was passed in October 2008 without amendment. This act decriminalises
abortion and allows abortion on a woman who is not more than 24 weeks pregnant. The Liberal MP
Bernie Finn spoke for six hours on contentious issues relating to the bill and strongly opposing the
bill. Australia’s most senior Catholic, Cardinal George Pell, said the bill would create a dangerous
precedent for legislators and he hoped the Victorian MPs would ‘act to defend human life ....’.
Some groups and members of the public commented that the bill breached the Victorian
Charter of Human Rights. Lawyer Julian Burnside wrote to all MPs saying the argument by Catholic
and pro-life supporters, that the Victorian Charter of Human Rights was being infringed, was
misconceived because abortion was not subject to the Charter’s provisions.
Parliaments use a number of committees or consult expert bodies such as formal law reform
bodies to undertake investigations to try to gauge public opinion. These bodies often hold public
forums and respond to public submissions. However, such investigations and consultations can be
time consuming and expensive.
Parliament provides an arena for debate and thorough discussion of all bills in both houses
of parliament. It can be argued that when there is a hostile upper house (where the government
does not hold the majority) the proposed laws are debated more vigorously and therefore the
resulting laws are more likely to be in line with the wishes of the majority of people. On the other
hand, the majority of the people vote the government into office, and its legislative program may be
restricted by a hostile upper house. It could therefore be said that the wishes of the majority are
hampered.
Since the 2010 election, the independents and the Greens member hold the balance of
power in the House of Representatives. This means that there will need to be consultation, and
possible compromises, for a bill to pass the House of Representatives. The Greens will hold the
balance of power in the Senate after July 2011, which will require future consultation and
compromise for contentious bills to be passed.
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
Some of the law-making powers of parliament are delegated to subordinate authorities, who
have the advantage of being expert bodies on their particular area of law-making power. However,
these are generally unelected bodies who have considerable power over our lives, and could
therefore make laws that may not represent the views of the public. However, the elected
parliament has to check the delegated legislation made by the subordinate authorities.
Chapter 2 assessment of task 1
Questions
1 Explanation of the reason for this change in
the law, plus one other change in the law. 4
marks
2 Discuss a method of influencing a change in
the law that may have been relevant to the
changes in the law referred to above. 4 marks
3 Description of the process of the passage of
a bill through parliament. 6 marks
4 Evaluation of the law-making process of
parliament. 6 marks
Total 20 marks
Very
high
4
High
Low
3
Mediu
m
2
1
Very
low
0
4
3
6
6
Comments
0
2
1
0
0
54
3
2
1
0
54
3
2
1
0
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
CHAPTER 2 ASSESSMENT TASK 2
Case study/folio exercise — chapter 2
Unit 3 — Outcome 1
Explain the structure and role parliament, including its processes and effectiveness as a law-making
body, describe why legal change is needed and the means by which such change can be influenced.
Law-making through parliament
1
Identify and describe the stage in the passage of a bill through parliament, referred to in the
extract above, stating the purpose of this stage in law-making. 3 marks
2
Describe the next stage that the Abortion Law Reform Bill would go through after the one
mentioned above and explain the purpose of that stage in the pass of a bill through
parliament.2marks
3
Given that this is a government bill, describe the roles that cabinet and parliamentary
counsel would have played in drafting this bill. Outline one of the difficulties faced by parliamentary
counsel in drafting legislation. 3 marks
4
Explain two reasons why parliament is considered to be an effective law-maker. 2 marks
Total 10 marks
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
SUGGESTED SOLUTION – CHAPTER 2 ASSESSMENT TASK 2
1
This Hansard extract is from the Second Reading in the Victorian Legislative Assembly of the
Abortion Law Reform Bill 2008. The relevant minister is Ms Maxine Morand, the Minister for
Women’s Affairs. The purpose of the Second Reading speech is for the minister introducing the bill
(Ms Maxine Morand) to outline the purpose of the bill in full. The minister explains why the bill is
being introduced, the problem the bill is attempting to overcome and how the proposed law will
improve matters. Debate may commence straight after the purpose of the bill is outlined, or may be
delayed to allow other members of parliament time to consider the bill in detail so that they can be
prepared to present their point of view during the debate.
2
At the conclusion of the second reading speech and debate the bill may be sent to the
committee stage. This may take the form of a Committee of the Whole House (now called
consideration in detail), or a smaller committee of a designated number of members. The committee
stage is an informal process, whereby the speaker (as this is in the Legislative Assembly) leaves the
house so that informal discussion can follow. The purpose of this stage is to have a thorough look at
the bill and discuss the bill in detail clause by clause. Amendments are most likely made at this stage.
3
Cabinet, consisting of the Premier and senior ministers, would have formulated the policy
surrounding this act after receiving advice from the relevant department and, in this case, the
Victorian Law Reform Commission. They clearly decided that it was no longer appropriate to have
abortion treated as a crime. The government asked the Victorian Law Reform Commission to fully
investigate this area of law. The government realised it needed to provide clarity for women, health
practitioners and the community about the circumstances in which the termination of pregnancy
can be performed. The Commission undertook widespread consultation with organisations and
individuals. They also convened a panel of experts from relevant health professions to advise them
on current clinical practice and a broad range of medical issues. Once the investigation has been
completed and a report has been tabled in parliament, the cabinet then has to decide what
recommendations to follow, so they can pass instructions on to the parliamentary counsel.
Parliamentary counsel are lawyers who are responsible for drafting legislation and giving
effect to policy decisions, while ensuring that the bill complies with constitutional powers and in
Victoria, is compatible with the Victorian Charter of Human Rights and Responsibilities. With regards
to abortion in particular, and in many other areas of law-making, there are conflicting opinions
about what the law should be. The parliamentary counsel has to find a way of drafting the bill that
will be acceptable to most people. One problem faced by parliamentary counsel is that they may not
be able to foresee all future circumstances so when drafting a bill they must try to cover every
aspect of the area of law.
4
Parliament is able to change the law when the need arises. In this instance the government
decided that there was a need to decriminalise abortion because of the injustices it caused and
possible medical problems, and was able to introduce this legislation to parliament while parliament
was sitting. Secondly, parliament can investigate whole areas of law when drafting legislation, and
consult expert and interested bodies. In relation to this bill, parliament consulted expert groups who
deal with children, including sporting clubs, church and community groups, child welfare
organisations, receiving 160 submissions and releasing and distributing an exposure draft of the
legislation. Alternatively, parliament is an elected body, whose members are elected by the people
to represent their views and values in parliament.
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
Chapter 2 assessment task 2
Questions
1 Identify and describe the stages in
the passage of a bill through
parliament, referred to in the extract
above, stating the purpose of these
stages in law-making. 3 marks
2 Describe the next stage that the
Abortion Law Reform Bill would go
through after the ones mentioned
above and explain the purpose of
that stage in the pass of a bill through
parliament. 2 marks
3 Given that this is a government bill,
describe the roles that cabinet and
parliamentary counsel would have
played in drafting this bill. Outline
one of the difficulties faced by
parliamentary counsel in drafting
legislation. 3 marks
4 Explain two reasons why parliament
is considered to be an effective lawmaker. 2 marks
Total Marks 10
Very
High
3
High
Medium
Low
1.5
Very
Low
1
2.5
2
2
1.5
3
2
Comments
0
1
0.5
0
0
2.5
2
1.5
1
0
1.5
1
0.5
0
0
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
CHAPTER 2 ASSESSMENT TASK 3
Case study/folio exercise — chapter 2
Unit 3 — Outcome 1
Explain the structure and role parliament, including its processes and effectiveness as a law-making
body, describe why legal change is needed and the means by which such change can be influenced.
Changing the law
Read the above information and answer the following questions.
1
Explain why it is important that the law ‘evolves sufficiently to keep pace with a changing
society’. Suggest one other reason why laws (in general) may need to change. 4 marks
2
Explain the role of the Victorian Law Reform Commission, including a discussion of how they
go about assessing the need for change in the law. 4 marks
3
Suggest how individuals or groups could have tried to influence the change in the law
discussed above. 4 marks
4
Explain three other methods of influencing changes in the law. 3 marks
5
Investigate the Crimes (Homicide) Act 2005. What defence was the defence of provocation
replaced with? Explain this defence. 2 marks
6
Explain two strengths and two weaknesses of law-making by parliament. 8 marks
Total 25 marks
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
SUGGESTED SOLUTION – CHAPTER 2 ASSESSMENT TASK 3
1
The law is meant to represent the values of society, so that people continue to accept the
laws and have confidence in them. If the law does not keep pace with the changes in society and
reflect the prevailing values of society then people are likely to not accept that law. Hence, the
Victorian Parliament abolished provocation as it felt that it was an outdated law that was no longer
accepted by society. Another reason why laws need to change (in general and not particularly
related to this case study) could include: changes in technology may necessitate a change in the law
in order to regulate new areas or situations that are created by these advancements (for example,
laws regulating stem cell research); changes to the law may be required in order to protect the
community from harm if a new harm becomes evident, or an existing one intensifies, for example,
anti-terrorism laws.
2
The role of the Victorian Law Reform Commission (VLRC) is to undertake research into areas
of law referred to it by the Victorian attorney-general and to make recommendations to parliament
on necessary changes to the law. (Note that the VLRC can investigate and recommend minor
changes to the law without a reference). After receiving a reference from the attorney-general the
VLRC will undertake initial research and consultations with experts in the area of law being
investigated. They will undertake further research and consult with the public and interested parties
through inviting written submissions to be made, by hosting discussion groups of experts. Then a
final report is prepared which will recommend changes in the law; this is tabled in the Victorian
Parliament. The government decides which, if any, of the recommendations for change will be
incorporated into a bill to put before parliament.
3
Individuals may try to influence the law through a number of ways. The media was
influential in influencing changes in the law in this instance. The problem of people being able to use
provocation as a partial defence for murder was discussed at length in the media. The James
Ramage case is an example where provocation was used as a partial defence during his trial for the
killing of his estranged wife. Ramage was found not guilty of murder but guilty of manslaughter and
he was sentenced to 11 years in prison with a minimum of eight years. He had tried to rekindle his
marriage after he and his wife had separated. When he realised it was useless, he invited his
estranged wife to his house to look at renovations. They argued and he knocked her down and
strangled her. He said he was provoked because she told him she was seeing another man. Many
people in the community thought that the use of the defence of provocation in such instances was
unjust and wrote to the editors of newspapers to express their views. Papers published strong
condemnation about the leniency of the sentence in this case. People also spoke about the case on
the radio.
4
An individual or group may write up a petition requesting a change in the law and then
collect signatures of those people supporting the change, for this petition to be presented to
parliament. The more signatures collected the more seriously parliament is likely to consider the
petition, as it represents the view of a large group of people. In this case Jane Ashton formulated a
petition to abolish provocation as a defence, on which she collected around 2500 signatures before
presenting it to parliament. Jane’s sister Julie Ramage was killed by her husband James Ramage, who
successfully pleaded that he was provoked into killing his wife by her actions.
In making judgments in court cases, judges may offer comments on the law in question.
These comments may then be considered by parliament when formulating legislation. With regards
to provocation Justices O’Bryan, Gleeson and Coldrey had all made statements during cases that
criticised the defence of provocation.
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
Demonstrations are a method used by individuals and groups to influence a change in the
law, but it is unlikely it would have been used in this situation. Demonstrations can be very
successful in bringing a need for a change in the law to the community and the government,
especially if they get media support. However, it is unlikely that a demonstration would be
organised relating to changing the law allowing provocation as a defence. Demonstrations are more
appropriate for big picture issues such as climate change and same-sex marriage, or very localised
issues such as a new railway line for Mildura.
5
The defence of provocation was replaced with the defence of defensive homicide. This
defence is able to be used if a person was acting in self-defence, but went further than is reasonable
in defending himself or herself. Defensive homicide is also an offence in its own right, therefore, a
person could be found not guilty of murder but guilty of defensive homicide.
6
One strength of parliament as a law-maker is that parliament is comprised of members who
are elected by the community to represent them in law-making. Parliament is therefore responsible
to the community. If the people are unhappy with the way in which their views are being
represented in parliament, then the Member of Parliament representing them is likely to be voted
out at the next election. However, members of parliament may be more concerned with being reelected and be subject to political pressures and influences. Thus parliament may not pass laws in
controversial areas for fear of being removed from office.
Another strength of parliament as a lawmaker is that the parliamentary process provides an
arena for debate. Due to a bill being debated and scrutinised by both houses of parliament most
political parties and individuals are able to have their say on the proposed legislation. The many
stages a bill must go through in its passage through parliament aims to ensure that there are no
loopholes or unjust laws passed by parliament, because any flaws should be recognised and fixed.
However if the government holds the majority in the upper house, the upper house can act as a
‘rubber stamp’ simply clarifying what has been said by the lower house and not giving thorough
debate and scrutiny. By contrast if the government does not hold the majority in the lower or upper
house, then it will be difficult to pass complex legislation and decisions by the opposition or
independents may water down the governments legislation, taking away what they where trying to
achieve.
Another strength of parliament is that investigations can be organised on its behalf and
information gathered from a number of sources before a bill is drafted. Parliament is able to consult
reports from law reform bodies, parliamentary committees and a range of experts. Due to
undertaking such thorough investigations parliament is able to make thorough and comprehensive
laws that cover huge areas of law. However, parliamentary investigations and consultations can be
very expensive and time consuming, which can be a weakness of this type of law-making.
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
Chapter 2 assessment task 3
Questions
1 Explain why it is important that the law
‘evolves sufficiently to keep pace with a
changing society’. Suggest one other reason
why laws (in general) may need to change. 4
marks
2 Explain the role of the Victorian Law Reform
Commission, including a discussion of how
they go about assessing the need for change
in the law. 4 marks
3 Suggest how individuals or groups could
have tried to influence the change in the law
discussed above. 4 marks
4 Explain three other methods of influencing
changes in the law. 3 marks
5 Investigate the Crimes (Homicide) Act 2005.
What defence was the defence of
provocation replaced with? Explain this
defence. 2 marks
4 Explanation of two strengths and
two weaknesses of law making by
parliament 8 marks
Very
high
High
Mediu
m
Low
Very
low
Comments
4
3
2
1
0
0
4
3
2
1
0
0
4
3
2
1
0
0
3
2.5
2
1.5
0.5
0
2
1.5
1
0.5
0
0
8
7
6
5
4
3
2
1
0
Total 25 marks
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
CHAPTER 3 ASSESSMENT TASK 1
Structured questions/folio exercise — chapter 3
Unit 3 — outcome 2
Explain the role of the Commonwealth Constitution in defining law-making powers within a federal
structure, analyse the means by which law-making powers may change, and evaluate the
effectiveness of the Commonwealth Constitution in protecting human rights.
The constitution
Investigate the law-making powers of the state and Commonwealth parliaments under the
Commonwealth of Australia Constitution Act 1900 (UK) and answer the questions below.
1
Describe the division of power between the state and Commonwealth parliaments under
the Constitution. Give examples. 5 marks
2
Discuss the limitations placed on the Commonwealth Parliament under the Constitution and
explain how these limitations affect the Commonwealth Parliament’s ability to make laws. 5 marks
Total 10 marks
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
SUGGESTED SOLUTION – CHAPTER 3 ASSESSMENT TASK 1
1
The Commonwealth of Australia Constitution Act 1900 (UK) gave to the Commonwealth
Parliament specific powers to make laws for the ‘peace, order and good government’ of Australia.
These specific powers are listed or enumerated in section 51 of the Constitution. Examples include
trade and external affairs. Some of these specific powers are made exclusive by virtue of other
sections of the Constitution. This means that only the Commonwealth Parliament can legislate on
these areas. Examples include defence and coining money. Other powers are concurrent powers,
which the Commonwealth Parliament shares with the states. If there is an inconsistent law made by
the two parliaments, then the Commonwealth law prevails over the inconsistent sections of the
state act, which will be considered invalid (under S109). Examples of concurrent powers include
marriage and taxation. All other powers not listed in the Constitution were left with the states.
These are known as residual powers. Examples include criminal law and public transport.
2
Limitations on Commonwealth Parliament – The Commonwealth Parliament cannot pass
laws:
 that would interfere with states’ powers on areas of law-making left with the states
 that restrict the practice of religion
 that discriminate between states
 that give preference to one state
 that restrict free trade
 that acquire property without the payment of just terms
 that create a body that combines judicial and legislative powers
 that discriminate with respect to taxation
 that restrict freedom of political communication
 that change the Constitution without a successful referendum being passed.
A previous prime minister, John Howard, attempted to change the gun laws throughout Australia.
There is no Commonwealth power regarding firearms. To achieve gun laws reform he had to
persuade the states to pass similar laws. His other alternative would have been to hold a
referendum to enable the Commonwealth to exercise this head of power. In some instances, the
states decide to refer a power to the Commonwealth. For example, the power to legislate with
regard to de facto and same-sex couples was referred to the Commonwealth Parliament in 2004.
Some of the limitations have been overcome through High Court interpretations relating to
which body holds law-making power. For example, the Commonwealth Parliament’s stopping of the
Franklin River Dam through an extended interpretation of the term ‘external affairs’, a power given
to the Commonwealth Parliament under the Constitution. This interpretation by the High Court gave
the Commonwealth the right to move into the domestic affairs of Tasmania for the purposes of the
hydroelectric supply for the state. The Commonwealth moved to stop the dam and therefore
extended their power into an area of state power. In this way the balance of power moved in favour
of the Commonwealth.
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
Chapter 3 assessment task 1
Questions
1 Describe the division of power between the
state and Commonwealth parliaments under
the Constitution. Give examples. 5 marks
2 Discuss the limitations placed on the
Commonwealth Parliament under the
Constitution and explain how these
limitations affect the Commonwealth
Parliament’s ability to make laws. 5 marks
Total 10 marks
Very
high
5
High
Low
4
Mediu
m
3
5
2
Very
low
1
4
3
Comments
0
2
1
0
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
CHAPTER 3 ASSESSMENT TASK 2
Structured questions/folio exercise — chapter 3
Unit 3 — Outcome 2
Explain the role of the Commonwealth Constitution in defining law-making powers within a federal
structure, analyse the means by which law-making powers may change, and evaluate the
effectiveness of the Commonwealth Constitution in protecting human rights.
The constitution
1
From where does the Commonwealth Parliament derive its law-making powers? 2 marks
2
Does the Commonwealth Parliament have unrestricted law-making power under the
Commonwealth Constitution? Explain. 3 marks
3
Outline two limitations imposed by the Commonwealth Constitution that limit the lawmaking powers of the state parliament. 2 marks
4
Explain why there are areas of law in which both the state parliaments and the
Commonwealth Parliament are able to make laws. What is the result if their laws are in conflict? 4
marks
5
Describe the role of the High Court in relation to the Constitution; including how and why
Constitutional cases come before it. 4 marks
6
Justify the following proposition: Since 1920, the High Court’s interpretation of the
Constitution has had a negative impact on the powers of the state parliaments. 5 marks
Total 20 marks
GO TO SOLUTION
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
SUGGESTED SOLUTION – CHAPTER 3 ASSESSMENT TASK 2
1
The Commonwealth Parliament derives its power to make laws from the Commonwealth of
Australia Constitution Act 1900 (UK). Section 51 lists specific powers that were given to the
Commonwealth Parliament at the time of federation to make laws for ‘the peace, order and good
government’ of Australia.
2
The Commonwealth Parliament does not have unrestricted law-making power under the
Constitution because some areas of law-making power were deliberately left with the states at the
time of federation. These areas of law-making power that are not listed in the Constitution are called
residual powers. Sections 106 and 107 of the Commonwealth Constitution protect the Constitutions
and the law-making powers of the States. Other areas of law-making power that have evolved, such
as IVF, have become residual powers, as they are not one of the specific powers listed in the
Constitution. Further, many of the specific powers which were given to the Commonwealth
Parliament were concurrent powers. That is, powers that are shared with the states, therefore the
states and the Commonwealth can legislate in an area covered by concurrent power. If there is a
conflict, Commonwealth power will prevail (section 109).
3
Some powers were given exclusively to the Commonwealth Parliament. These powers were
made exclusive by sections of the Constitution, such as section 115 that makes coining money
exclusive to the Commonwealth Parliament. Section 115 of the Constitution prevents the state
parliaments from coining their own money. Section 114 of the Constitution prevents a state from
raising or maintaining any military forces. These are both areas of exclusive powers, in which only
the Commonwealth Parliament has the power to legislate.
Further, section 90 states that the imposition of customs and excise duties is exclusive to the
Commonwealth and therefore states cannot raise customs and excise duties.
4
There are areas of law in which both the Commonwealth and the state parliaments can pass
legislation; these are known as concurrent powers, and they are shared by both state and federal
parliaments. Areas of concurrent power comprise of specific powers that have been given to the
Commonwealth Parliament, but have not been made exclusive, thus have not been taken away from
the states, hence they are shared. However, if there is an inconsistency in the laws made by the
Commonwealth and the states in these areas, then section 109 of the Constitution states that the
federal law will prevail over the state law, and the inconsistent part of the state law shall be invalid.
5
The High Court is the only court in Australia that has the power to interpret the Constitution.
This occurs when a parliament (either Commonwealth or state) has passed legislation, and its
validity is challenged by an individual, group, organisation or another parliament, who believe it to
be outside of the constitutional jurisdictional power of that parliament. Such challenges can only be
heard by the High Court. The High Court’s role is to read through the relevant sections of the
Constitution, and determine whether the offending legislation falls under the Constitutional power
of the parliament concerned. In doing so, the High Court is adding meaning to the words of the
Constitution; however, such interpretation does not change the actual wording of the Constitution.
The section of the Constitution and the High Court’s interpretation of it are read together to form
the law.
6
The High Court is unable to change the words of the Constitution, but is able to interpret the
Constitution to expand the meaning of the words within the Constitution. In the time since
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
federation, most of the High Court decisions have led to more power being given to the
Commonwealth Parliament, thereby limiting state power, although there was an attempt to
nationalise the banks giving all power in this area to the Commonwealth Parliament. This was
unsuccessful. The Engineer’s case in 1920 saw the start of the trend towards broader interpretations
by the High Court, rather than the strict interpretation of the words.
The High Court was called upon to interpret the words ‘postal, telegraphic and other like
services’ in Brislan’s case. It decided that these words also included wireless sets (radios), which
were not originally included in the Constitution. It was later expanded in the case of R v. Jones to
also include television. The Commonwealth Parliament’s power over the armed forces was
expanded to include the air force, not envisaged at the time of the drafting of the Constitution.
The First Uniform Tax case in 1942 led to the Commonwealth Parliament taking over the
levying of income tax exclusively. This has meant that the states became more dependent on the
Commonwealth for money. The Commonwealth has therefore been able to give ‘tied grants’
specifying the use of money given to the states, and thereby exerting influence on the states in areas
of state power.
The Commonwealth Parliament has been able to move into some areas of domestic power
through the High Court’s interpretation of words in the Constitution such as the words ‘external
affairs’. In the Franklin Dam case in 1983 the High Court decided that the Commonwealth Parliament
had the right to legislate to stop the building of a dam in Tasmania because there was an
international treaty covering the area and international treaties were the province of the
Commonwealth Parliament. The High Court interpreted the words ‘external affairs’ to cover areas
that were covered by an international treaty. The Commonwealth Parliament used this new power
to legislate to intervene in a domestic issue in Tasmania.
In Walter Hammond’s case the High Court was called upon to determine whether NSW
franchise fees that had been levied on tobacco wholesalers were excise duties — an exclusive power
of the Commonwealth. The High Court found that these franchise fees being charged in NSW were
excise duties, and so were unconstitutional. This greatly reduced the power of the states to levy such
taxes, depriving them of significant taxation revenue. Such monies need to be collected by the
Commonwealth and given to the states, thereby further eroding the financial independence of the
states.
The High Court has also been called upon to decide if some Commonwealth legislation
invalidated certain sections of state acts because under S109 of the Constitution, Commonwealth
power overrides state power, to the extent of any inconsistency (e.g. McBain’s case).
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
Chapter 3 – assessment task 2
Questions
1 Description of the origin of the law-making
powers of the Commonwealth Parliament. 2
marks
2 Explanation of the extent to which the
Commonwealth Parliament has unrestricted
law-making authority. 3 marks
3 Explanation of the limitations on the lawmaking power of the State Parliament. 2
marks
4 Explanation of concurrent powers and
inconsistency provision. 4 marks
5 Explanation of the role of the High Court in
interpreting the Constitution. 4 marks
6 Explanation of the extent to which the lawmaking powers of state parliaments are
influenced by High Court decisions. 5 marks
Total 20 marks
Very
high
2
High
Low
1.5
Mediu
m
1
0.5
Very
low
0
3
2
2
Comments
0
1.5
1
0
0
1.5
1
0.5
0
0
4
3
2
1
0
0
4
3
2
1
0
0
5
4
3
2
1
0
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
CHAPTER 3 ASSESSMENT TASK 3
Structured questions/test/folio exercise — chapter 3
Unit 3 — Outcome 2
Explain the role of the Commonwealth Constitution in defining law-making powers within a federal
structure, analyse the means by which law-making powers may change, and evaluate the
effectiveness of the Commonwealth Constitution in protecting human rights.
The constitution — changing the division of power
1
Explain the process by which the public has the power to change or update the Constitution,
and the process for change as set out in section 128 of the Commonwealth of Australia Constitution
Act 1901 (UK). 3 marks
2
Analyse the reasons for the failure of so many referendums, and assess the effectiveness of
referendums as a means of changing the division of law-making powers between the
Commonwealth and state parliaments. 4 marks
3
Using illustrative examples, explain how the High Court interprets the Constitution and
comment on the impact of the interpretations on the division of powers. 3 marks
Total 10 marks
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
SUGGESTED SOLUTION – CHAPTER 3 ASSESSMENT TASK 3
1
The Constitution can be changed or updated through a process of the people voting 'yes' to
a referendum put to them by the government. A referendum is the process whereby the people vote
on a proposed change to the wording of the Commonwealth Constitution. Firstly, the proposed
change needs to be drafted in the form of a constitutional alteration bill, and passed through both
houses of the Commonwealth Parliament or one house twice. Then, between two and six months
later, the proposed change is put to the voters of Australia in the form of a yes/no question. Before
the change to the wording of the Constitution can be successful the double majority provision must
be satisfied, meaning that both the majority of voters in the whole of Australia (including the
territories) must vote yes, and the majority of voters in a majority of states must vote yes (at least 4
out of 6 yes states). Further, if the proposed change affects a particular state, then there must be a
majority of yes votes in that state before the proposed change can be successful. If the bill passes
these stages, then it is given to the Governor-General for royal assent. Thus, any change or update of
the Constitution must receive support from the voters of Australia.
2
Only eight out of 44 referendum proposals have been accepted. This is due partly to the
difficulty of satisfying the double majority provision, particularly the majority of voters in a majority
of states. Many voters vote ‘no’ for reasons such as a lack of understanding of the changes, fear of
change or conservatism, apathy or disinterest in the issues. Also, a lack of bipartisan support results
in people being divided on the issue, making it difficult to get a majority. Thus, a referendum is not a
very successful method of changing the Constitution. Further, of the eight successful referendums,
only three have altered the division of powers — all in favour of the Commonwealth Parliament
(state debts in 1928, social services in 1946 and Aboriginal people in 1967). The other changes have
not impacted on the division of powers.
3
The High Court is the only court with the power to interpret the Constitution. It is required
to do so when there is a dispute arises (between governments, individuals or groups) regarding the
meaning of the words in the Constitution. The Engineer’s case in 1920 saw the start of the trend
towards broader interpretations by the High Court, rather than the strict interpretation of the
words.
The High Court was called upon to interpret the words ‘postal, telegraphic and other like
services’ in Brislan’s case. It decided that these words also included wireless sets (radios), which
were not originally included in the Constitution. It was later expanded to also include television. The
Brislan interpretation gave more power relating to radios to the Commonwealth Parliament.
The Commonwealth Parliament’s power over the armed forces was expanded to include the
airforce through a High Court decision. An airforce was not envisaged at the time of the drafting of
the Constitution.
The First Uniform Tax case in 1942 led to the Commonwealth Parliament taking over the
levying of income tax exclusively. This has meant that the states became more dependent on the
Commonwealth for money. The Commonwealth has therefore been able to give ‘tied grants’
specifying how the money given to the states was to be used, and thereby exerting influence on the
states in areas of state power and thereby giving the Commonwealth more power.
The Commonwealth Parliament has been able to move into some areas of domestic power
through the High Court’s interpretation in the Constitution such as the words ‘external affairs’. In the
Franklin Dam case in 1983 the High Court decided that the Commonwealth Parliament had the right
to legislate to stop the building of a dam in Tasmania because there was an international treaty
covering the area and international treaties were the province of the Commonwealth Parliament.
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
The High Court interpreted the words ‘external affairs’ to cover areas that were covered by
an international treaty. The Commonwealth Parliament used this new power to legislate to
intervene in a domestic issue in Tasmania.
In Walter Hammond’s case the High Court was called upon to determine whether NSW
franchise fees that had been levied on tobacco wholesalers were excise duties — an exclusive power
of the Commonwealth. The High Court found that these franchise fees being charged in NSW were
excise duties, and so were unconstitutional. This greatly reduced the power of the states to levy such
taxes, depriving them of significant taxation revenue. Such monies need to be collected by the
Commonwealth and given to the states, thereby further eroding the financial independence of the
states.
The High Court has also been called upon to decide if some Commonwealth legislation
invalidated certain sections of state acts because under S109 of the Constitution, Commonwealth
power overrides state power, to the extent of any inconsistency (for example, McBain’s case).
Chapter 3 – Assessment of task 3
Questions
1 Explain the process by which the public has
the power to change or update the
Constitution, and the process for change as
set out in section 128 of the Commonwealth
of Australia Constitution Act 1901 (UK). 3
marks
2 Analyse the reasons for the failure of so
many referendums, and assess the
effectiveness of referendums as a means of
changing the division of law-making powers
between the Commonwealth and state
parliaments. 4 marks
3 Using illustrative examples, explain how the
High Court interprets the Constitution and
comment on the impact of the interpretations
on the division of powers. 3 marks
Total 10 marks
Very
high
3
High
Medium
Low
1.6
Very
low
1
2.5
2
4
3
3
2.5
Comments
0
2
1
0
0
2
1.5
1
0
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
CHAPTER 4 ASSESSMENT TASK 1
Structured questions/folio exercise — chapter 4
Unit 3 — Outcome 2
Explain the role of the Commonwealth Constitution in defining law-making powers within a federal
structure, analyse the means by which law-making powers may change, and evaluate the
effectiveness of the Commonwealth Constitution in protecting human rights.
Protection of human and democratic rights
Consider the role of constitutions in protecting rights and answer the following questions.
1
Using specific examples, explain the types of rights of Australians that are protected by the
Commonwealth Constitution. 5 marks
2
Explain structural protection of rights in the Constitution using an example. 10 marks
3
Compare and contrast how our Constitution protects rights with the approach taken in one
of the following countries: Canada, South Africa, United States of America or New Zealand. 5 marks
Total 20 marks
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
SUGGESTED SOLUTION – CHAPTER 4 ASSESSMENT TASK 1
1
The Commonwealth Constitution protects only a limited number of express or stated rights.
These rights include:
 that the Commonwealth must provide fair and just compensation to the owners of property
acquired by the government (s.51(xxxi))
 the right to trial by jury for indictable Commonwealth offences (s.80)
 the right to free trade and commerce between states (s.92)
 freedom of religion in the sense that the Commonwealth Parliament cannot establish a state
religion, prohibit a particular religion, or require a religious test as a requirement for holding a
Commonwealth office (s. 116)
 the right not to be discriminated against based on your state of residence (s.117). These express
rights are entrenched in the Constitution, meaning that they can only be changed by way of a
successful referendum.
There is also the right to freedom of political communication that the High Court has interpreted as
being implied within the Constitution.
2
The Commonwealth of Australia Constitution Act 1900 provides mechanisms for the indirect
protection of the rights of Australians in their dealings with the Commonwealth Parliament by
preventing the abuse of power. These mechanisms are known as the structural protection of rights
and include:
 responsible government
 representative government
 separation of powers and the High Court of Australia as a final arbiter of the power of the
Commonwealth.
Under the parliamentary system, the executive, in the form of the governor-general, acts on the
advice of the prime minister and senior ministers. This means that the power of the government is
exercised by an elected person who is responsible to the parliament and indirectly to the electors.
The executive (in practice the prime minister, senior ministers and government
departments) needs the support of the lower house to continue to govern. This will be particularly
relevant in the Commonwealth Parliament following the 2010 election when the government
depends on the support of two independents and a member of the Greens to reach a majority in the
House of Representatives.
Ministers must explain their actions to the parliament when requested to do so. If the
government loses the support of the lower house in a motion of no confidence, it must resign or ask
the governor-general to dissolve the lower house and call a general election. Hence the government
is responsible to the parliament and, in turn, is responsible to the people. The people can show their
approval or disapproval of parliament’s actions at election time.
S53 of the Commonwealth Constitution gives legal recognition for the principle of
responsible government. The government cannot operate unless it is able to collect tax and spend
money (that is, pay defence forces and public servants and distribute money to the states. Only the
House of Representatives can initiate appropriation bills (for collecting taxes and distributing
revenue) and therefore the government must have the confidence of the lower house to run the
country.
The notion of responsible government therefore protects the right of citizens to be governed
by a government that has the confidence and support of the elected lower house. This protects
against the possibility of a government abusing its power.
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
Although members of the government will usually vote with their party, there are
sometimes dissenting views and on occasions members of the government will vote with the
opposition.
The text and structure of the Constitution specifically describes the system of representative
government. Representative government refers to a government that represents the view of the
majority of the people. The founding fathers were united in their desire that the Commonwealth
Parliament should embody the highest principles of direct representation. They demonstrated this
by requiring both houses to be elected by the people.
S7 of the Constitution directs that the senators for each state shall be directly chosen by the
people. S24 of the Constitution directs that members of the House of Representatives shall be
directly chosen by the people. S8 and S30 further emphasise the ideal of representative government
by requiring that each elector shall only vote once.
The right to vote for all people aged 18 years and above is not expressly guaranteed in the
Constitution. However, the High Court judges have expressed the view in obiter (statements on the
side and not part of a reason for a decision) that the Senate and the House of Representatives could
not be directly chosen by the people if sections of the people, such as people of a particular ethnic
background, were disqualified from voting.
Direct election by the people of their political representatives gives the people the right to
expect that those representatives will represent their needs in parliament as much as possible. If a
government begins to ignore the needs and wishes of the majority of people, it is likely it will be
voted out of office at the next election.
Representative government therefore protects the right of the people to be governed by the
people of their choosing (or that of the majority). A government cannot continue to govern without
the support of the people and therefore the people are protected from governments having too
much power over people’s lives.
However, the government may find difficulty in implementing its legislative program if the
government does not hold a majority in the upper house.
In the case of Vicki Lee Roach the High Court confirmed the right to vote because of the
provision for representative government in the Constitution, although this right can be limited for
substantial reasons, such as for people who are serving a prison sentence of three years or longer.
The Vicki Lee Roach case also illustrated the protection afforded to members of the
community by the separation of powers. Under the separation of powers, the legislative power and
the executive power are combined, but the judicial power is separate. This means that the executive
and the legislature are responsible deciding what the laws should be and passing the laws, but the
judiciary is responsible for interpreting the law and applying the law to particular situations. This
protects individual liberty by providing checks and balances on the power of the Commonwealth
Parliament. No one body can make law, administer law and also rule on its legality.
In the Vicki Lee Roach case the High Court was ruling on the validity of the Electoral and
Referendum Amendment (Electoral Integrity and Other Measures) Act 2006. The aim of this act was
to extend the ban on prisoners voting, from just those serving three years or more, to all convicted
and sentenced prisoners. The High Court found that this was not valid this act was not valid because
the Commonwealth Parliament could only restrict the right to vote in substantial circumstances.
3




Depending on the chosen country, the key points of comparison should include:
whether the rights are entrenched within the Constitution of the other country (for example
Australia, Canada, the United States, South Africa), or they are statutory bills of rights (for
example New Zealand)
the number and extent of rights protected
the mechanism used to change the rights (for example, referendum for entrenched rights)
the extent to which the rights are enforceable by the High Court or equivalent
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia


whether the High Court or equivalent can declare any legislation that impinges on rights to be
invalid
whether courts need to take into account the provisions of the bill of rights when interpreting
legislation (for example South Africa).
Chapter 4 – assessment task 1
Questions
1 Using specific examples, explain the types of
rights of Australians that are protected by the
Commonwealth Constitution. 5 marks
2 Explain structural protection of rights in the
Constitution using an example. 10 marks
3 Compare and contrast how our Constitution
protects rights with the approach taken in
one of the following countries: Canada, South
Africa, United States of America, New
Zealand, or the United Kingdom. 5 marks
Total 20 marks
Very
high
5
High
Medium
Low
4
3
2
Very
low
1
10
9
5
8
7
4
6
5
3
4
3
2
2
1
1
Comments
0
0
0
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
CHAPTER 4 ASSESSMENT TASK 2
Folio exercise – chapter 4
Unit 3 – Outcome 2
Explain the role of the Commonwealth Constitution in defining law-making powers within a federal
structure, analyse the means by which law-making powers may change, and evaluate the
effectiveness of the Commonwealth Constitution in protecting human rights.
Rights
1
Explain how freedom of religion is protected by the Australian Constitution. 3 marks
2
Analyse the extent to which the right to trial by jury is protected by the Australian
Constitution. 3 marks
3
Explain how the rights protected by the Commonwealth Constitution are enforced in
Australia. 4 marks
Total 10 marks
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
SUGGESTED SOLUTION – CHAPTER 4 ASSESSMENT TASK 2
1
Section 116 of the Commonwealth Constitution protects freedom of religion for Australians
by stating that the Commonwealth cannot make any laws to establish any religion, impose religious
observance, prohibit the free exercise of any religion, or require a religious test for any
Commonwealth office. These rights are upheld by the High Court, who can declare any legislation
that infringes these rights to be invalid.
2
Section 80 of the Commonwealth Constitution offers some right to a trial by jury, but this is
very limited. The section applies only to Commonwealth offences that are tried on indictment (as
indictable offences); however, with criminal law being a residual power, most indictable offences
come under the jurisdiction of state laws and therefore would be heard under the court system of
the various states.
The High Court has ruled that indictable means ‘crimes tried on indictment’. Therefore, the
government can avoid S80, and thus avoid a jury trial for even the most serious offences, by
declaring that the offence is a summary offence, rather than an indictable offence to be tried on
indictment. (This is unlikely but could occur for something such as acts of terrorism.)
3
The rights protected by the Commonwealth Constitution are entrenched rights, meaning
that the only way in which these sections of the Constitution, and therefore the statement of rights,
can be changed is via a successful referendum. Referendums can only ever succeed when there is
overwhelming support by the voters for the change.
When drafting bills to be passed by the Commonwealth Parliament, any bills that could
involve Constitutional issues should be considered by the Senate Standing Committee on Legal and
Constitutional Affairs, to ensure that they are within constitutional limits. This offers some
protection against Commonwealth legislation infringing the protected rights in the Constitution. The
High Court has the role of interpreting and enforcing the rights protected within the Constitution.
The High Court hears cases where the validity of legislation is being questioned by individuals,
groups or organisations (including governments) that could be claimed to infringe upon the
protected rights. The High Court can then declare any such legislation to be invalid. These rulings
cannot be overruled by parliament.
Chapter 4 – assessment task 2
Questions
1 Explanation of protection of the freedom of
religion. 3 marks
2 Analysis of the Constitutional protection of
right to trial by jury. 3 marks
3 Explanation of the enforcement and
protection of rights. 4 marks
Total 10 marks
Very
high
3
High
Low
2.5
Mediu
m
2
1.5
Very
low
1
3
2.5
4
3
Comments
0
2
1.5
1
0
2
1
0
0
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
CHAPTER 4 ASSESSMENT TASK 3
Essay — chapter 4
Unit 3 — Outcome 2
Explain the role of the Commonwealth Constitution in defining law-making powers within a federal
structure, analyse the means by which law-making powers may change, and evaluate the
effectiveness of the Commonwealth Constitution in protecting human rights.
Protection of human and democratic rights
‘The Commonwealth Constitution is one of the most important documents in our society, as it sets
out not just the structure and law-making powers of the Commonwealth Parliament, but it also
protects some of our fundamental human rights.’ Discuss.
Total 20 marks
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
SUGGESTED SOLUTION – CHAPTER 4 ASSESSMENT TASK 3
A suggested approach could include:
 statement about the importance of the Constitution being the basis of our law-making structure
 discussion of the basic structure and format of the Constitution. This would include explanation
of sections relating to legislature, executive, judiciary — with reference to the separation of
powers
 discussion of the structure of the Commonwealth Parliament The House of Representatives, the
Senate the Governor-General/Crown — drawing on knowledge from Outcome 1
 the division of powers under the Commonwealth Constitution. The Commonwealth of Australia
Constitution Act 1900 (UK) gave the Commonwealth Parliament specific powers to make laws.
Some of these are concurrent powers that are shared with the states. If there is an inconsistent
law made by the two parliaments, then the Commonwealth law prevails over the inconsistent
sections of the state act, which will be considered invalid (under S109). Other specific powers
may be made exclusive by virtue of other sections of the Constitution, meaning that only the
Commonwealth Parliament can legislate on these areas. All other powers not listed in the
Constitution were left with the states. These are known as residual powers
o exclusive power — coining money
o concurrent power — marriage
o residual power — crime
 some comment on restrictions on state and Commonwealth powers
 the balance of power between the states and the Commonwealth Parliament can be changed
through a referendum, referral of power, High Court interpretation of the words in the
Constitution, or tied grants
 the protection of human rights – Commonwealth Constitution protects a limited number of
express or stated rights. These rights include:
o that the Commonwealth must provide fair and just compensation to the owners of
property acquired by the government (Ss51(xxxi))
o the right to trial by jury for indictable Commonwealth offences (S80)
o the right to free trade and commerce between states (S92)
o freedom of religion in the sense that the Commonwealth Parliament cannot establish a
state religion, prohibit a particular religion, or require a religious test as a requirement
for holding a Commonwealth office (S116)
o the right not to be discriminated against based on your state of residence (S117)
 these express rights are entrenched in the Constitution, meaning that they can only be changed
by way of a successful referendum. There is also the right to freedom of political communication
that the High Court has interpreted as being implied within the Constitution. Sections 24 and 7
of the Constitution provide that the House of Representatives and the Senate shall be directly
chosen by the people, which arguably protect a right to vote. All human rights are protected by
the High Court, who can declare any legislation that impinges on these protected rights to be
unconstitutional and therefore invalid
 the Commonwealth Parliament, set up under the Constitution, passes legislation to protect our
human rights, for example the right not to be discriminated against. These rights are enforced
through the courts
 the High Court, set up under the Constitution, hears cases where individuals believe their human
rights have been infringed
 discussion as to the limitations of the Commonwealth Constitution in protecting our human
rights. These rights are very limited in number. We do not have a bill of rights, unlike most
developed nations. Instead our rights are protected predominantly by legislation (both federal
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
and state) and common law – although a bill of rights exists in the Australian Capital Territory
and Victoria.
There needs to be reference or response to the essay topic throughout. Dot points
should not be used.
Chapter 4 – assessment of task
Criteria
1 Explanation of structure of parliament and
preliminary discussion. 3 marks
2 Explanation of the law-making powers of
the Commonwealth Parliament — division
of powers. 6 marks
3 Analysis of the protection of rights under
the Commonwealth Constitution. 8 marks
4 Reference to the essay topic/format of
response/development of ideas. 3 marks
Total 20 marks
Very
high
High
Mediu
m
Low
Very
low
Comments
3
2.5
2
1.5
1
0
6
5
4
3
2
1
0
8
7
3
6
5
2.5
4
3
2
3
2
1.5
1
0
1
0
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
CHAPTER 5 ASSESSMENT TASK 1
Folio exercise — chapter 5
Unit 3 — Outcome 3
Describe the role and operation of courts in law-making, evaluate their effectiveness as law-making
bodies and discuss their relationship with parliament.
Law-making through the courts
1
Examine the process of law-making through the courts and answer the questions below.
Explain the doctrine of precedent, its operation and the process of law-making through courts. 5
marks
2
Discuss limitations placed on courts as law-makers, and the extent to which a precedent,
created in a court, is a final statement of the law. 5 marks
Total 10 marks
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
SUGGESTED SOLUTION – CHAPTER 5 ASSESSMENT TASK 1
1
The doctrine of precedent is also referred to as stare decisis, literally meaning ‘stand by what
has been decided’. This provides consistency as similar cases are decided in a similar manner. When
a decision is reached in a superior court of record the reason for the decision becomes part of the
law that is binding on lower courts in the court hierarchy. For a case to be binding on another case,
the first case (the binding precedent) must have been decided in a court higher in the same
hierarchy of courts and relate to similar circumstances.
Other points that could be mentioned are:
 A decision of a superior court remains law until it is overruled by a higher court or altered by
parliament.
 A higher court can overrule a decision of a lower court.
 The High Court is able to overrule its own decisions. It is the only court which can do this.
 Precedents from other court hierarchies are not binding but may be persuasive on a court.
 Obiter dicta (statements made by the way) may be persuasive on future cases.
 Precedents can be distinguished, overruled, reversed or disapproved.
 The courts must wait for a case to come before them before they can make law.
 For a precedent to be set there must be no jury. Law-making by courts usually occurs when
cases are heard on appeal.
 Law-making through courts occurs when a judge, in his or her summing up of a case, makes a
decision on the case and provides a reason for the decision (the ratio decidendi). This reason for
the decision then becomes part of the law, to be read alongside legislation, and remains law
until it is overruled or abrogated by parliament.
2
Superior courts of record are able to make law on an issue that becomes before them, but
they cannot make a decision to be followed in the future unless an aggrieved person is prepared to
take the matter to court. In creating the precedent on negligence in Australia it was necessary for Dr
Grant to be sufficiently aggrieved about the rash he received from the underpants that had
chemicals in the wool, to take the matter to court — Grant v. Australian Knitting Mills (1936). The
court the matter is taken to must be a superior court of records. The Magistrates’ Court can make a
decision on a matter, but this cannot form a precedent that is followed in the future. It is the lowest
court in the hierarchy.
For a court to create a precedent, there cannot be a jury. The reason for this is that a
judgment has to be given providing the reason for the decision (the ratio decidendi). A jury can make
a decision on the facts, but a jury does not give a reason for the decision. Law-making in courts,
therefore, usually occurs when a matter is taken to a higher court on appeal.
A further limitation in law-making by courts is that an unsuccessful party must be dissatisfied
with the outcome of a case and must have the financial ability, and the motivation, to take the
matter on appeal. In the case of Inge v. Q (1999) HCA 55 (7 October 1999), the Supreme Court of
South Australia decided that the offender’s age should be considered when deciding on a non-parole
period. The 23-year-old offender was convicted of murder and given a mandatory life sentence, with
a non-parole period of 20 years. The Court of Criminal Appeal of South Australia decided that the
relative youth of the offender should be considered when deciding on a non-parole period as the
offender had a greater life expectancy. This decision was reversed by the High Court. The High Court
decided that the relative youth of the offender should not be considered in deciding the non-parole
period.
The High Court is not bound by its own decisions, and can change the law as the need arises,
although the High Court will usually follows its own decisions.
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
A precedent created by a court can be reversed on appeal, or the parliament can make a law
that overrides the decision.
The courts are sometimes conservative and will leave important law-making to the
parliament. The rape in marriage case is an example of the courts following an old, outdated,
precedent, and leaving the law-making to the parliament.
A precedent remains as part of the law as long as it is not overruled or reversed by a higher
court in the same hierarchy. The conservatism of the High Court usually means that they will follow
their own previous decisions. However, this is not always the case; the High Court has on occasions
overruled its own previous decisions.
A decision of a court can be abrogated by the parliament. For example, the Crimes
(Amendment) Act 1985 abolished the common law relating to the immunity of a husband against
charges for rape.
Parliament can pass a law that confirms the precedent. This occurred after the Mabo decision by the
High Court in 1992. The Commonwealth Parliament enacted the Native Title Act 1993.
The courts can ensure that the precedent is firmly established by following it in the future.
Chapter 5 – assessment task 1
Questions
1 Explain the doctrine of precedent, its
operation and the process of law-making
through courts. 5 marks
2 Discuss limitations placed on courts as lawmakers, and the extent to which a precedent,
created in a court, is a final statement of the
law. 5 marks
Total 10 marks
Very
high
5
High
Low
4
Mediu
m
3
5
2
Very
low
1
4
3
Comments
0
2
1
0
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
CHAPTER 5 ASSESSMENT TASK 2
Structured questions — chapter 5
Unit 3 — Outcome 3
Describe the role and operation of courts in law-making, evaluate their effectiveness as law-making
bodies and discuss their relationship with parliament.
Law-making through the courts
1
Describe the role played by the courts in law-making. In your answer include discussion of
why it is necessary for courts to make law, the ways in which courts make laws, and the effects of
lawmaking by judges. 10 marks
2
Explain two limitations faced by judges and courts on their ability to make law. 2 marks
3
While judges may be bound to follow statements of law in earlier cases, they may try to use
techniques to avoid doing this, thereby developing precedent further. Explain two of these
techniques and their effect. 4 marks
4
Explain two advantages and two disadvantage of having a doctrine of precedent. 4 marks
Total 20 marks
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
SUGGESTED SOLUTION – CHAPTER 5 ASSESSMENT TASK 2
1
Courts contribute to law-making in two main ways. Judges make laws on new issues that
arise in a case before them in which there is no previous statute or common law, or if the current
common law needs expansion or narrowing. Courts are required to make a ruling on the case before
them, so they are compelled to make statements of law in these instances. A precedent, which is a
statement of law, may be created. The reason for the decision (ratio decidendi) becomes a
statement of court made law.
The doctrine of precedent, or stare decisis, which means to stand by what has been decided,
refers to the process by which judges follow previous decisions of higher courts. Precedent can be
either binding or persuasive. Binding precedent is precedent that must be followed by a court when
making a decision on a similar case. It is the ratio decidendi that forms the binding part of the
decision. Precedents that are binding include the decision of a higher court in the same court
hierarchy or a decision in the same court if it is one that is bound to follow its own decisions.
Persuasive precedent is the precedent that courts do not have to follow, but they may choose to do
so. It is often highly influential and includes: the decision of lower courts in the same hierarchy, the
decision of a court in a different hierarchy, the decision of a court in the same level of the court
hierarchy and obiter dictum (statements said by the way that do not directly relate to the reason for
the court’s decision in the case).
The second situation in which courts make laws is when a judge presiding over a legal
dispute needs to examine and interpret the meaning of words, phrases or sections contained in a
statute that is being applied to the case before them. When courts engage in statutory
interpretation and make a judicial decision on the meaning of words or phrases within statutes, this
creates precedent, which is binding on all lower courts and persuasive on other courts. The
legislation and statutory interpretation are read together to determine the law. The judge’s
interpretation gives meaning to the words but does not change the words.
2
Judges are only able to make law when a case comes up before them in which the particular
issue/ area of law is being considered — they must wait for a test case. Also, precedent can only be
created in superior courts, as courts lower in the court hierarchy do not have courts below them for
the doctrine of precedent to apply to. They also need to be courts of record, where the judgments
are recorded. Another limitation is that precedent is usually only created when a case is on appeal,
or where there is no jury present, as juries do not need to give a reason for their decision, but judges
do.
3



Techniques used to avoid precedent include:
distinguishing — A judge may find that there are different material facts existing between the
case that they are currently hearing, and the case in which an earlier precedent was set. This
then creates a new precedent for a different factual situation, and the precedent for the original
factual situation still applies.
overruling — A judge deciding a case in a higher court may not agree with a precedent set in
another case in a lower court. The superior court may decide not to follow the existing
precedent, and to overrule or change it, thereby creating a new precedent and replacing the old
precedent.
reversing — A judge in a higher court that is deciding a case on appeal may rule that the
precedent in the lower court was wrong, and reverse or change the previous decision. This
results in a new precedent that replaces the previous precedent.
Only two required.
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
4
One advantage of the doctrine of precedent is that it creates certainty and consistency in the
legal system, as a case will be decided in a similar way as a previous case. Another strength is that,
through the techniques used for avoiding or developing precedent (see above), the law can change
as required. This provides flexibility in setting a precedent. However, a weakness could be that a
judge may be unable to avoid a precedent that they find undesirable or inappropriate, thereby
limiting the flexibility of precedent. Another weakness of the doctrine of precedent is that the courts
have to wait for a test case to come before them before they can make a precedent on a specific
issue — this could take time, and requires a party who is willing to pursue an action.
Chapter 5 – assessment task 2
Questions
Very
high
High
Mediu
m
Low
Very
low
Comments
1 Description of the role played by courts in
law-making. 10 marks
2 Explanation of two limitations faced by
judges and courts in law-making. 2 marks
3 Explanation of two techniques judges can
use to avoid precedent. 4 marks
4 Discussion of two advantages and two
disadvantages of the doctrine of precedent. 4
marks
10
9
2
8
7
1.5
6
5
1
4
3
0.5
2
1
0
4
3
2
1
0
0
4
3
2
1
0
0
0
0
Total 20 marks
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
CHAPTER 5 ASSESSMENT TASK 3
Folio exercise — chapter 5
Unit 3 — Outcome 3
Describe the role and operation of courts in law-making, evaluate their effectiveness as law-making
bodies and discuss their relationship with parliament.
Statutory interpretation
Read the case study above and answer the questions.
1
Explain the process of statutory interpretation in general, and comment on why the case
described above is an example of statutory interpretation. Describe one method used by the courts
in the process of statutory interpretation. 5 marks
2
Discuss the reasons for statutory interpretation. 5 marks
3
Explain the relationship between courts and parliaments. 5 marks
Total 15 marks
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
SUGGESTED SOLUTION – CHAPTER 5 ASSESSMENT TASK 3
1
Courts are from time to time called upon to interpret the words in a statute to give them
meaning. This process is referred to as statutory interpretation. Acts of parliament are written in
general terms, and particular sections of an act of parliament may need to be applied to a particular
situation. Judges will normally look at the precise meaning of the words in the act (the literal
approach). If this is not likely to produce a just result, or if the precise meaning of the act is not clear,
then judges will look at the purpose of the act (the purposive approach). The above case is an
example of statutory interpretation as, in order to determine if the relevant act had been infringed,
the words of the act had to be interpreted. The terms to be interpreted were ‘computer program’
found in the Copyright Amendment Act 1994 (Cth). The court had to interpret the words in order to
determine if the defendant had infringed the copyright of the plaintiff. The original trial court found
that the defendant had used 169 of the same words in his program, and therefore there was an
infringement of copyright. The High Court interpreted the words differently — it was the High
Court’s opinion that the words were not sufficiently original for the original plaintiff to be able to
claim copyright over them. The purposive approach is now mandatorily preferred under the
Commonwealth Acts Interpretation Act 1901. Under this approach, the courts look at the purpose
behind the act to try to ascertain the meaning of the words in the act. In other words, the intention
of the law-makers when passing the legislation. In order to ascertain the purpose of the act the court
is able to look at extrinsic materials such as parliamentary committee reports, international
agreements, the second reading speech and parliamentary debates.
2
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



The reasons for statutory interpretation include:
the intention of the act may not be clear and in order to apply the act to the particular set of
circumstances it is necessary to give particular meaning of the words. The interpretation of the
words can then be applied to the situation
there may be inconsistent use of the same word (giving it different meanings) within the act. It is
therefore necessary to interpret the meaning of the word for the overall act and in particular the
relevant section. To do this it may be necessary to look at the purpose behind the act
the legislation may not have taken into consideration future developments. For example, the
Commonwealth of Australia Constitution Act 1901 did not consider the need to cover an
airforce, or television. The words ‘and other like services’ in the Constitution were assumed to
cover television. The words ‘like services’ was found to include wireless sets (radios) in Brislan’s
case in 1935
the definition of a word might be too broad in an act. For example, the word weapon may
require further definition in order to make it apply to the situation before the court. In Deing v.
Tarola the courts were asked to consider if a studded belt being worn as clothing was a weapon
the meaning of the words in an act may be ambiguous. For example, is a person ‘in charge of
vehicle’ when they merely ‘attempt to start a vehicle’ but do not exactly drive it? In the scenario
above, the courts were required to determine the meaning of the term ‘computer program’.
This was necessary to ascertain if the defendant in the case had infringed copyright by creating a
‘computer program’ that was too similar in nature to the one created by the plaintiff in the case.
The words ‘computer program’ were ambiguous and needed to be interpreted.
It is not recommended that dot points be used in a question requiring you to discuss.
3
Courts and parliaments interact in the law-making process. They need to work together so
that the law is flexible and can apply to any situation that might arise. Common law (law made
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia
through courts) arose from the local customs of England and existed before any statutes had been
passed. Statutes have confirmed, added to and altered common law.
The courts are responsible for settling disputes. Many disputes are settled by the courts by
interpreting the words in an act of parliament. As a secondary role, on occasions, the courts also
make laws.
Parliament is the supreme law-making body. This is also referred to as sovereignty of
parliament. Parliament’s main role is to make laws. As a supreme law-making body, parliament can
make laws that either, confirm or reject, laws made by courts, although the Commonwealth
Parliament cannot override High Court interpretations of the Commonwealth Constitution.
The relationship between courts and parliament can be summarised as:
• parliaments pass acts to establish courts – for example the Magistrates’ Court Act established
the Magistrates’ Court and provided guidelines for the operation of the court
• courts apply and interpret the law made by parliament – each set of circumstances in the case is
different and the courts must apply the acts of parliament to the case before them, giving
meaning to words within the acts of parliament
• parliament can change or confirm law made by courts – once a precedent is set by parliament
can either pass an act to change the law or pass an act to confirm the law established in a
precedent
• court decisions can influence changes in the law by parliament – courts may be conservative and
reluctant to make changes to the law, instead leaving it to parliament; a court can highlight
problems in the law by making obiter comments during the judgment of a case; courts can be
creative and establish a precedent that is read together with the acts of parliament as a full
coverage of the law on a particular issue; lenient sentences given in a criminal case have caused
a public outcry and have led the parliament to change the law to be more in line with public
opinion, for example the Victorian Parliament passed the Crimes Amendment (Child Homicide)
Act 2008 after two such controversial cases.
Chapter 5 – assessment task 3
Questions
1 Explain the process of statutory
interpretation in general, and comment on
why the case described above is an example
of statutory interpretation. Describe one
method used by the courts in the process of
statutory interpretation. 5 marks
2 Discuss the reasons for statutory
interpretation. 5 marks
3 Explain the relationship between courts and
parliaments. 5 marks
Total 15 marks
Very
high
5
High
Low
4
Mediu
m
3
2
Very
low
1
5
4
5
4
Comments
0
3
2
1
0
3
2
1
0
Justice and Outcomes 11e ISBN 978 0 19 557102 8 © Oxford University Press Australia