Suggested solutions to questions in Justice & Outcomes 11th edition

Suggested solutions to questions in Justice & Outcomes

11

th

edition

The following are suggested solutions to assessment tasks. They 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

CHAPTER 2

CHAPTER 3

CHAPTER 4

CHAPTER 5

Justice and Outcomes 11e ISBN 978 0 19 557102 8

© Oxford University Press Australia

CHAPTER 1

Unit 3 – Outcome 1

Folio exercise (Page 33)

1 Describe cabinet and explain its role. (2 marks)

Cabinet is a meeting of ministers of the government. It consists of senior government ministers. Its main role is to decide on the policy of the government. This includes deciding what bills will be presented to parliament.

2 Fill in the following table: (2 marks)

The name of the Victorian upper house Legislative Council

The name of the Victorian lower house

The name of the upper house of the

Commonwealth Parliament

The name of the lower house of the

Commonwealth Parliament

How long are Members of the lower house in

Victoria elected for?

Legislative Assembly

Senate

House of Representatives

Four years

How long are members of the upper house in

Victoria elected for?

How long are members of the upper house of the

Commonwealth Parliament elected for?

Four years

Six years

How long are members of the lower house of the

Commonwealth Parliament elected for?

Three years

3 Describe the principle of the separation of powers and explain the main reasons for this principle. (6 marks)

There are three types of power, legislative power, the executive power and the judicial power. The legislative power is the power to make laws, which lies with parliament. The executive power is 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 judicial power is given to bodies responsible for enforcing the law and settling disputes, that is the courts and tribunals. Under the principle of the separation of powers, at a federal level, the judicial power must be kept separate from the legislative power and the executive power. This separation provides independence between the bodies that make the law (parliaments) and the bodies that enforce the law (courts). In this way the freedom of the people is protected, as it ensures that no one body has absolute control. Courts are able to keep a check on parliaments in that they are called upon to interpret laws made by parliaments and cannot be directed by parliament to decide in a particular way. The courts can check to see that parliament does not go outside its area of power. Governments are therefore more stable because there is less opportunity for them to instigate radical changes in the law.

(See pages 26–28 for more information.)



4 Explain the role of the House of Representatives and the Senate. (4 marks)

The House of Representatives is the lower house of the Commonwealth Parliament. It has a number of key roles, including:

 the People’s house – the House of Representatives is comprised of members who have been voted into office by the people in order to represent their views in parliament. Further, the

House provides a forum for petitions and concerns from citizens to be raised in parliament.

 the seat of government – the political party (or coalition of parties) with the majority of seats in the lower house forms government. Thus, the House of Representatives determines the government.

 to initiate bills – most bills (and all money bills) are initiated in the House of Representatives, as this is where the government has the majority of members. It is also the house from which most ministers come.

The Senate is the upper house of the Commonwealth Parliament. Its main roles include:

 house of review – as most bills are initiated in the House of Representatives, the Senate has the task of reviewing bills that have already passed through the lower house.

 state’s house – the interests of the states are protected by each state being represented in the

Senate by the same number of Senators i.e. 12 per state and 2 per territory. This equal representation for each state ensures that the larger, more populous states cannot dominate the interests of the smaller states.

5 Assess the effectiveness of the Senate as a states' house and a house of review. (6 marks)

The Senate is a states' house in that it has an equal number of senators from each state. This therefore gives every state equal representation. However, the senators are more likely to vote with their party. This may mean they are not voting in the way that would be most beneficial for their state, although they may try to influence their party to consider the needs of their state.

The Senate is also known as a house of review. The reason for this is that bills are often reviewed by the Senate after they have been approved in the House of Representatives. The Senate is therefore part of the checking process. Half of the senators have been members of the Senate for at least three years and are therefore likely to be more conservative than new senators. This is likely to bring more caution to the review process. However, again, the senators are likely to vote on party lines, and if they are members of the government they will usually support the bill to help the government in their legislative program. Therefore, when the government has a majority in the upper house, the Senate can be seen as acting as a 'rubber stamp'. However, if there is a hostile senate, the debate and scrutiny of bills is likely to be more vigorous.




Case study – Balance of power (Page 34)

1 What is the structure of the Commonwealth Parliament? (1 mark)

The Commonwealth Parliament consists of:

 the Queen or Queen’s representative

 the Senate (upper house)

 the House of Representatives (lower house).

2 In what way is parliament a supreme law-making body? (1 mark)

The parliament is a supreme law-making body because it can make laws within its jurisdiction and these laws can only be changed by an amending act or act that repeals them, passed by the same parliament. The courts can interpret the words in the act, but if the parliament is not happy with the way the courts interpret the words in an act, the parliament can make changes to rectify the situation. Parliaments are able to do this because parliaments can overrule decisions made by courts, although the High Court has the final say on the interpretation of the Constitution, unless a referendum is held to give the Commonwealth Parliament the power to change the Constitution.

3 Why do you think the principle of separation of powers is a necessary part of our democratic system? (4 marks)

The separation of powers protects the stability of government and the freedom of the people. The government and the parliament must work together to pass laws. The government under the executive power is combined with the legislative power under our system. The judicial power is separate at a federal level.

In a democracy the people elect members of parliament to make decisions on the running of the country (or state) on behalf of the people. The government is made up of the members of the political party with the majority of members in the lower house. In a democracy generally there is a constitution that guarantees basic personal and political rights, fair and free elections, and independent courts of law.

Parliament passes laws for the benefit of society as a whole. The separation of powers is an important element of our parliamentary system because it is a method of protecting the people from the abuse of power by the parliament. In other words, parliament is unlikely to pass laws that are too draconian or infringe on a person’s rights because if people feel that a law that has been passed that is ultra vires (outside the power of the parliament making the law) they can take the matter to court to make a ruling on the issue.

If the courts and the parliament were combined, parliament could influence the courts to rule in their favour to allow draconian laws. As the courts are separate from parliament under the separation of powers, parliament cannot influence the decision of a court. Parliament can pass a law that overrules courts’ decisions, but if the law continued to be ultra vires, people could again call on a court to strike it out because the law was not within the jurisdiction of the parliament passing the law.

It would be a conflict of interest if the parliament that made the law were also given the power to investigate any breaches of the law, find a person guilty if he or she was thought to have broken the law and to punish that person.



In a democratic society it is essential to protect the freedom of the people, provide independence between the bodies that make the law and the bodies that enforce the law and keep a check on the power of parliament to ensure that it does not go outside its area of power.

4a Explain the role of the Senate. To what extent do you think the Senate is able to fulfil its role? In a democracy, should the Senate be able to obstruct government-proposed laws? Discuss. (8 marks)

In a democracy, the party that wins the majority of seats is voted into government. This means that the majority of voting Australians decided on the political party to run the country. This should give the government the consent of the people (the mandate) to introduce proposed laws into parliament, with the expectation of them being passed, so that they can fulfil their election promises.

This does not always occur. It depends on the make-up of the Senate, whether the government also has a majority in the Senate.

The role of the Senate is as a state’s house, that is, there are an equal number of representatives (12) for each state in the Senate. There are two representatives for each territory.

The founding fathers, at the time of writing the Constitution, aimed to ensure that the opinions of the more populated states did not override those of the lesser populated states. The states could therefore feel confident that each state had equal representation.

Overtime this sentiment has been eroded in the interests of party politics. It is expected that the members of a political party in the Senate will vote in accordance with the wishes of their party, rather than in the interests of their state. The senators, no doubt, behind closed doors, will argue in favour of what is good for their state but, if a political party is to be successful politically, it has to present a united front. Sometimes senators do decide to vote with the other party (cross the floor), for example, Senator Barnaby Joyce of the National Party crossed the floor 19 times under the

Howard coalition government on such issues as trade practices and voluntary student unionism.

However, these issues were not necessarily particularly relevant to his state of Queensland. He was voting for what he believed in.

The Senate is also a house of review. Proposed laws (bills) can be initiated in the lower house or the upper house, but as most ministers reside in the lower house, bills are more frequently introduced for the first time in the House of Representatives (at a federal level). Bills must be passed by both houses and therefore, the Senate often acts as a house of review (although the House of

Representatives acts as a house of review if a bill has been initiated in the Senate).

Is this review a rubber stamp or a vigorous opposition? If the government holds a majority in the Senate, the Senate can act more as a rubber stamp, a confirmation of the government’s legislation. This means that any government bill can pass through both houses quickly and easily.

This may not be a good thing for a democracy. In a democracy, the parliament should represent the interests of the people whoever they voted for. When the government has a majority in the Senate the debate on a bill can be less vigorous and the scrutiny can be less effective. Not everyone in the country voted for the government and the government must govern for all Australians. The opposition, if effective, can promote the interests of their party followers so any legislation is less skewed to one side of the political spectrum.

When the government has a minority in the Senate (a hostile Senate), the voting public have shown a clear preference for some restraint to be placed on the government. In a democracy, the opinions of all are considered before action is taken. When there is a hostile Senate, there is more opportunity for changes to be made to proposed laws before they are passed to ensure that they are more representative of the wishes of all Australians.



The Rudd Labor Government had a minority in the Senate but could get the support they needed to pass bills if the opposition party (the Liberals and National Party) were opposing the proposed law, by encouraging the Greens and one of the independents to vote with them. This required the government, in some instances, to reach compromises with the Greens or independent to get their support. If this was achieved, the views of the opposition party did not need to be considered. As the opposition party is the second major party, this meant that some sections of the community were not represented.

Although it is the role of the opposition party to oppose and show flaws in proposed laws, it will not oppose all legislation, but can encourage small changes to make the proposed law fairer for all.

Following the federal election in 2010, there was a hung parliament with neither the Liberal

Coalition nor the Labor Party able to gain the necessary 76 seats in the House of Representatives to form government in their own right. They had to rely on the independents and the member of the

Greens Party to decide on who should form government.

4b Explain the principles of representative government and responsible government. How effective do you think the Commonwealth Government is in achieving these ideals? Discuss. (6 marks)

Representative government refers to a government that represents the view of the majority of the people. The members of the government are elected by the people. In a democracy there is a representative government, with guaranteed basic human rights. These rights are guaranteed because the government can be voted out of office by the people if they longer represent the interests of the people. Representative government cannot operate unless there are regular elections to ensure that the government remains representative of the people.

Representative government is guaranteed under S7 and S24 of the Constitution. These sections require the Senate and the House of Representatives to be chosen directly by the people.

The bicameral system further contributes towards a more representative government because, particularly in the case of a hostile Senate, the senators may be required to negotiate with the government to get the support of the opposition party, minority parties and independents to get proposed laws passed by parliament. Therefore, a broader spectrum of representation is achieved.

The effectiveness of a representative government being able to fulfil its election promises can be compromised by a hostile Senate, because it will be restricted in the proposed laws that will be able to pass through the Senate. We vote for a political party that most represents our interests, but our interests will conflict with the interests of others, so a government cannot fulfil the wishes of all the voting public, but we have to be prepared to follow the wishes of the majority and if the government loses sight of the wishes of the people, they will be voted out of office at the next election.

Responsible government refers to the government’s responsibility to the voters. A democratically elected government must be answerable and accountable to the people for its actions. Ministers are drawn from within the government and they must maintain the confidence of the government. As they are elected members of parliament they are also responsible to the people.

Ministers must carry out their duties with integrity and propriety or resign.

Members of parliament have the opportunity to question ministers about their activities and the activities of their departments. The government must respond to the concerns of the parliament and the people and must answer questions where appropriate. The public is able to view parliament in operation and read a record of the proceedings in Hansard.

Members of the public are able to lobby governments, sign petitions, approach members of parliament, attend demonstrations and use the media to show their opposition to a law and try to



influence the government to initiate changes in the law. However, governments are not obliged to change the law when they receive requests to do so, or even respond to recommendations in reports commissioned by themselves.

Governments must try to balance the interests of all the people. This means they must decide which opinions to listen to when there are conflicting opinions. Therefore, they are responsible to the people, but some members of the public will not be happy or satisfied with the actions of the government. This will generally be acceptable to the majority of the people, if it is thought that the government is acting responsibly overall and doing a good job for the country.

Under a democratic system, if the mood of the voters swings, and more of the people feel dissatisfied with the government, at the next election, it is likely that the government will be voted out of office.



CHAPTER 2


Folio exercise – Save Our Streets (Page 81)

1 Explain what problem has arisen to prompt the actions being taken. (1 mark)

Victoria has been experiencing a spate of street crimes, including serious assaults.

2 What outcome is being sought? (1 mark)

The Police Association hope to influence the government to implement legislation to increase the size of the police force and get more police on our streets, where they are needed most.

3 What has the Police Association of Victoria done so far to alert the public to the problem and gain public support? (2 marks)

Two small petitions have been tabled in parliament to alert the government to the concerns of the

Police Association. Petition forms have been distributed widely around Victoria. The Police

Association also created a Save Our Streets website which could receive names, phone numbers and email addresses showing support for the Save Our Streets campaign. This website no longer exists because the Police Association has completed the petition, which was submitted to parliament in

April 2010. Following the petition, both major parties have shown their support for more police on the streets.

4 What method of influencing a change in the law has been used by Save Our Streets campaign? Evaluate that methods looking at its strengths and weaknesses. (4 marks)

A petition has been used to influence a change in the law in the Save Our Streets campaign. Petitions are very useful in showing the government that there is a large groundswell of support for a particular wish to change the law, if there are a large number of signatures on the petition. The strength of this method of trying to influence a change in the law is that it can be easy to gain a lot of support, however, it takes considerable time and manpower to organise the gaining of signatures on a petition on a grand scale. In this case, two small petitions were submitted to parliament with few signatures. These would do nothing more than alert the government and the parliament of an interest in requiring the law to be changed to appoint more police to police the streets. Petitions with few signatures are unlikely to influence a change in the law.

When the Police Association had gained thousands of signatures, they submitted another petition to parliament. The government and the opposition have responded by giving their support for an increase in the number of police on the streets.

Many petitions are submitted to parliament each day and it is unlikely that all petitions can result in influencing a change in the law. A petition is likely to be only a small part of a concerted campaign to try to influence a change in the law. For it to be successful it requires the support of the people to be shown in other ways such as media talk-back shows and lobbying members of parliament. A petition alone has little chance of success.



5 What more do you think can be done to influence law-makers to take action to solve this problem? Make a list of other actions you would take to promote this campaign. Give reasons for the actions you suggest. (4 marks)



demonstrations – You could organise a demonstration or take part in a demonstration. A demonstration is a gathering to promote a change in the law. Demonstrations are a good way of bringing a particular issue to the notice of the government, especially if they get good coverage in the media. It is possible to advertise a demonstration on the internet or in the newspapers to encourage support. If the demonstration is large, it is more likely to influence the government to initiate a change in the law because it shows that there are a large number of supporters for the change in the law. There are likely to be many people who would support an increase of police officers on the streets.



media – A campaign to try to influence a change in the law is likely to be ineffective if it does not get coverage by the media. You could write a letter to the editor of a newspaper to gather support for the suggested change in the law or ring up a talk-back show to point out the need for the change in the law. It is likely that a need for more police officers would gain lots of support from the public. The newspapers or internet may also decide to run a number of editorials on the topic.



lobbying – It is possible to lobby a member of parliament to encourage them to bring up the need for a change in the law with the government. You could contact the Minister for Police and

Emergency Services pointing out the need for more police officers on the streets. It is however, a matter of competing needs within the community; the government has to decide which is the most pressing.



Private member’s bill – a member of the opposition could be persuaded to introduce a private member’s bill into parliament. This is less likely to be successful because it does not have the backing of the government. However, it may be one other way of bringing the issue to the notice of the government.

6 Give an example of a change in the law that has taken place recently or has been proposed.

Explain a method that has been used to try to influence this change in the law. How effective do you think this method of influencing a change in the law has been? (3 marks)

Contacting or making a submission to a law reform body or other government body is a method of trying to influence a change in the law. Consumer Affairs Victoria (CAV) handled about 200 complaints about gyms in 12 months, in particular about unfair contracts. These complaints were brought to the attention of the State Minister for Consumer Affairs, Tony Robinson, who said most of the complaints involved contractual disputes. The Australian Productivity Commission also investigated the issue of consumer law and unfair contracts. There were many articles in the newspapers over a period of time relating to the problem of unfair contracts. There were also talkback shows dealing with this issue and articles on the internet. The Commonwealth Parliament passed the Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010. Under this act, a contract is unfair if:

 it would cause a significant imbalance in the parties’ rights and obligations arising under the

 contract and the term is not reasonably necessary to protect the legitimate interests of the party who would be advantaged by the term and

 it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.



This issue gained the support of state governments and the Commonwealth Government.

Attempts to influence a change in the law were therefore successful. However, if these methods had been used on a controversial issue such as same-sex marriages, they would not have been successful because there are very clear conflicting attitudes towards same-sex marriages in the community. As a consequence, state governments and the Commonwealth Government have been reluctant to introduce a change in the law to allow same-sex marriages, although both at a state level and the

Commonwealth level, changes have been made to improve the rights of same-sex couples.




Folio exercise – Jury directions (Page 82)

1 What is the problem that has been identified in this example? (2 marks)

The problem referred to in this example is a judge in a trial giving misleading directions to a jury, which can lead to unjust outcomes. The appeal court found that the trial judge (Justice Cummins) did not sufficiently direct the jury in relation to comments made by Farquharson to a friend about planning to kill his children in revenge against his ex-wife.

The appeal judges said Justice Cummins should have directed the jury that they had to be satisfied of the terms of the conversation before they could infer ‘conciousness of guilt’ by

Farquharson. They said: ‘. . . the way in which the issue of consciousness of guilt was left to the jury in this case gave rise to the appreciable risk that it had a significant impact on the outcome of the case and thus to have caused a miscarriage.’

2 marks)

How effective do you think the VLRC would be in influencing changes in the law? Discuss. (2

The VLRC are usually asked by the government to investigate a particular issue. This means that the government has seen that there is a need for a change in the law and want a full investigation and community consultation so that they can gauge the direction the change in the law should take.

Once a final report has been given to parliament the government has to consider what aspects of the report they will follow and put into legislation and what aspects do not suit their direction at the time. If there are conflicting attitudes about an issue, it is less likely that the recommendations will be fully implemented.

In the case of the enquiry into defences to homicide, following the recommendations of the

VLRC, the law was changed to abolish the partial defence of provocation and a new defence of defensive homicide was introduced. This was incorporated in the Crimes (Homicide) Act 2005 (Vic.).

In the case of juries, the government the government referred a project on jury directions in criminal trials to the commission on 2 January 2008. The project aimed to identify which of the judges' instructions to juries could be simplified or removed and to what extent judges need to summarise evidence for juries.

As a consequence of the final report in June 2009, the government committed itself to reducing the number of appeals that result from erroneous jury directions by simplifying the law and acting on the VLRC’s report on jury directions. There have been some conflicting views about the extent to which legislation should regulate jury directions. The Law Council of Australia has stated that judge’s warnings and directions to a jury should not be reduced to one piece of legislation.

There has therefore been delay in implementing any of the recommendations in this report.

3 Explain three ways in which individuals can be involved in influencing changes in the law. To what extent do you think these methods of influencing changes in the law are likely to be effective?

(6 marks)



demonstrations – You could organise a demonstration or take part in a demonstration. A demonstration is a gathering to promote a change in the law. Demonstrations are a good way of bringing a particular issue to the notice of the government, especially if they get good coverage in the media. It is possible to advertise a demonstration on the internet or in the newspapers to



encourage support. If the demonstration is large, it is more likely to influence the government to initiate a change in the law because it shows that there are a large number of supporters for the change in the law. However, this method of showing support for action to be taken by the government has limited success because it depends on the amount of support and whether the proposed change in the law fits in with the government’s legislative program and philosophy, and the amount of conflict there is about the issue. For example, there have been many demonstrations about same-sex marriages and the law has not been changed in this direction, although same-sex couples have many more rights than used to be the case. On the other hand, some controversial issues, where demonstrations have occurred, have led to changes in the law for example the Abortion Law Reform Act 2008 (Vic.), legalising abortions.



media – A campaign to try to influence a change in the law is likely to be ineffective if it does not get coverage by the media. You could write a letter to the editor of a newspaper to gather support for the suggested change in the law or ring up a talk-back show to point out the need for the change in the law. The newspapers or internet may also decide to run a number of editorials on the topic. If an issue gains community support the government is likely to look at whether a change in the law is appropriate. The government may first request a committee to look into the issue, such as the Victorian Law Reform Commission. Not all demands for changes in the law in the media are successful, again it depends on the government’s legislative program and philosophy, and the amount of conflict there is about the issue. However, backing by the media is essential in trying to influence a change in the law.



petition – A petition drawn up correctly and submitted to parliament can successfully bring an issue to the notice of the government, especially if it contains thousands of signatures. However, there are many petitions submitted to the parliament each week on general issues such as environmental issues or local issues such as the Mildura rail line. Many of these petitions have little influence on changes in the law. If a petition relates to an issue that the government is in favour of it can lead to a change in the law, especially if it is followed up by media coverage of the issue.

4 marks)

Explain the role of cabinet and government departments in the law-making process. (2

Government departments investigate the issues relevant to their departments. For example, the

Department of Human Services in Victoria may investigate the need for changes in the law in relation to aged care or community services. This may be as a result of individuals contacting them about problems, or because of media coverage of related issues. The government department is then likely to make recommendations to cabinet about new laws that are required. Cabinet is the government policy-making body that decides on what new laws should be introduced to parliament.

5 How are members of the Legislative Assembly informed of the purpose of a proposed law?

(2 marks)

The purpose of a proposed law (bill) is explained at the second reading speech. At this stage the bill is explained and the reason for introducing the bill is outlined.

6 In the Australian Parliamentary system, the government is a representative government.

Explain ways in which the law-making process reinforces the principle of representative government.

(4 marks)



Representative government refers to a government that represents the views of the majority of the people. The government consists of representatives of the people who are elected by the people.

The government decides what laws should be presented to parliament. Parliament passes the laws.

During the law-making process the purpose of a proposed law is explained to the members of parliament. Debate takes place. Amendments may occur as a result of the discussion. Members of the government will usually vote with the government to try to ensure that government bills are passed. Members of the opposition will often vote against the bill. As the government holds the majority of members in the lower house, the proposed laws should represent the wishes of the majority of people who voted for members of the government. However, if the government does not hold a majority in the upper house, the wishes of the majority may be compromised because the opposition may vote against the bill and the bill may not be passed.

7 In what ways is the Commonwealth Government a responsible government? (2 marks)

Responsible government refers to the government’s responsibility to the voters. Ministers are drawn from within the government and they must maintain the confidence of the government. The previous prime minister Kevin Rudd lost his position as prime minister because he lost the confidence of the government and he resigned. The party voted Julia Gillard into the position of prime minister in his place. Ministers are responsible to parliament and therefore the people.

Members of the parliament have the opportunity to question ministers about their activities and the activities of their departments.

If the government loses the support of the lower house it must resign. The 2010 election result was a hung parliament. Both parties had to try to get the support of the independents and the

Greens party member in order to govern. The concern of the independents was the need to support a government that could represent the needs of the people and could maintain the confidence of the parliament. A problem for both parties was that if one member of their party became ill, died or resigned, there would need to be a bi-election. This could result in them losing a seat and could lead to a new election.




Case study – Victorian Law Reform Commission (Page 83)

Investigate the Victorian Law Reform Commission and write a case study report. In your report answer the following questions.

1 Outline the role of the Victorian Law Reform Commission in assessing the need for a change in the law. (2 marks)

The Victorian Law Reform Commission is an independent, government-funded organisation that develops, monitors and coordinates law reform in Victoria. The Commission has a charter to consult with the community and advise the Attorney-General on how to improve and update Victorian laws.

The commission’s role is:

 to make law reform recommendations on matters referred to it by the Attorney-General

 to make recommendations on minor legal issues of general community concern

 to suggest to the Attorney-General that he or she refer a law reform issue to the commission

 to educate the community on areas of law relevant to the commission's work

 to monitor and coordinate law reform activity in Victoria.

The Commission is established under the Victorian Law Reform Commission Act 2000 as a central agency for developing law reform in Victoria.

2 How does the VLRC decide which are of law reform to investigate? (1 mark)

The areas of law investigated by the VLRC are usually referred to it by the Attorney-General, although the VLRC is also has the power to recommend minor changes to the law without a reference.

3 Explain a change, or proposed change, in the law that has been investigated by the VLRC.

Why do you think the law needed to be reviewed? (2 marks)

The VLRC investigated the need to change the law in relation to defences to homicide. The law needed to be reviewed because people were expressing the view that sentences for homicide were inadequate when the defence of provocation was used. The investigation into the use of provocation followed the high profile case of James Ramage. Ramage killed his estranged wife and pleaded not guilty to murder. He was found not guilty of murder but guilty of manslaughter because of provocation. He was sentenced to 11 years in prison with a minimum of eight years. Ramage desperately wanted to get back with his wife after separation. He became very angry when she told him that she had had sex with another man. He hit her and strangled her. There was a public outcry about the leniency of Ramage’s sentence.

The commission found that the law of provocation had failed to evolve sufficiently to keep pace with a changing society. By reducing murder to manslaughter, the partial defence condoned male aggression towards women and was often relied upon by men who kill partners or ex-partners out of jealousy or anger. The commission said, ‘It had no place in a modern, civilised society’.



4 To what extent did the law reform body consult with ordinary members of the community in assessing the need for change? Discuss. What other methods were used to investigate the area of law? (5 marks)

In investigating defences to homicide and assessing the need for change the VLRC:

 released an issues paper in March 2002 that explained the existing law and defences, and noted how, where and who commits most homicides

 published an occasional paper in March 2002 written by Professor Jenny Morgan from the

University of Melbourne’s Law School, examining the circumstances in which men and women kill

 held public information sessions at Melbourne Town Hall during October 2002, where organisations such as Victoria Police, the Office of Public Prosecutions and the Law Institute were present, as well as judges and interested members of the community

 established a Homicide Advisory Committee in December 2002, which was made up of expert individuals such as lawyers, judges, police, and legal academics

 released an options paper in September 2003, which identified a range of possible changes to current defences to homicide, and asked readers for their feedback and submissions on 85 specific questions

 received 32 submissions to the options paper from organisations involved in homicide law and from some individuals affected by homicide

 held information sessions with relevant agencies in November 2003

 held an expert forum in December 2003, which was attended by about 80 people representing family violence services, government departments, police and universities

 held expert roundtables in late 2003 to early 2004

 conducted workshops with people from culturally and linguistically diverse backgrounds (CALD) and indigenous people to gain their insight.

5 ‘The VLRC is the most appropriate method of influencing parliament to change the law.’

Discuss. In your discussion consider other methods used by individuals and groups to influence changes in the law and explain the advantages and disadvantages of the VLRC as a method of influencing a change in the law. (6 marks)

The Victorian Law Reform Commission (VLRC) and other formal law reform bodies are necessary to investigate the need for changes in the law. The VLRC can investigate a need for change in the law, drawing upon expert opinions and investigations, and inputs from the general public. These investigations are comprehensive and thorough. They can assess public opinion about the suggested changes in the law by consulting with members of the public and experts and holding public forums.

Recommendations are made to parliament regarding legislative change, however parliament will decide the extent to which it will implement any recommendations.

In August 2007, the VLRC was asked to advise the government in relation to the decriminalisation of abortion. More than 500 submissions from individuals, groups and organisations were received. Over 30 meetings were held with interested parties, a panel of medical experts was used to assist the VLRC and national surveys and market research was conducted to ascertain community attitudes on abortion. The recommendations were tabled into parliament in March 2008 and the Abortion Law Reform Act 2008, followed many of the recommendations.

It can therefore be seen that this method of influencing changes in the law is very successful because it is able to gain information about the wishes of the people, and parliament is more likely to act on the advice given. However, the VLRC mainly investigates matters referred to it by the



parliament. This means that individuals may see there is a need to change a law but they cannot convince the government to take it further and investigate the matter. The VLRC is able to investigate issues without a reference from government, but these are normally only small issues.

The media is able to inform the public of what has occurred and the need for a change in the law however the media may not cover the full range of opinions about the proposed change in the law, although some extreme opinions may be reported. The media has investigated such areas as the need of a change in the law in relation to climate change. Although some changes have been made in relation to renewable energy, more could be done, such as a carbon tax.

Demonstrations are a way of getting public attention, and eventually the attention of the ministers. If they are supported by the media, it is likely that the government will listen to them, however, there have been many demonstrations about climate change with little changes to the law as a result.

Petitions can be drawn up to inform members of parliament that some people in society believe that there is a need for a change in the law. Petitions have limited success, because there are so many presented to parliament. They are not regarded as particularly important, unless there is also a media campaign about the issue.

6 marks)

Evaluate the reasons law may need to change using examples to illustrate your answer. (4

The law needs to be constant so people can feel confident about what the law is. However, values and attitudes in society may change over time, and it is necessary for the law to keep up with these changes in society. For example, more people are living in de facto or same-sex relationships, and in order to protect the interests of the individuals, the law has needed to change. If there had not been changes in the law, people living in de facto or same-sex relationships would find that they would suffer great injustices. They were not entitled to inherit from a deceased partner or be the beneficiary of an insurance policy, even after spending many years living together. This has now been changed, so de facto and same-sex couples have most of the same rights as a married couple.

Advances in technology have meant that the law has needed to change to protect the interests of individuals. People have been victims of identity crime, and law was not adequate to cover the situations when this occurred. The Crimes Amendment (Identity Crime) Act 2009 has been passed to overcome this problem.

The Equal Opportunity Act 2010 has evolved over many years to protect the interests of people who may be discriminated against. This act was passed to replace existing legislation. In 2008

Equal Opportunity Amendment (Family Responsibilities) Act was passed to ensure that discrimination against parents or carers in employment does not occur.




Case study – Identity crime (Page 83)

Read the information on the Crimes Amendment (Identity Crime) Act 2009 earlier in the chapter and at right and answer the questions.

1 What are the problems that the Crimes Amendment (Identity Crime) Act 2009 is trying to overcome? What new offences are being proposed? (2 marks)

Identity crime is the result of more and more complex technology. It is now possible for people to steal information about you from your computer without you knowing it. According to the Australian

Bureau of Statistics, over 140 000 Victorians were the victims of identity crime in 2007. Three new identity crimes were created under the 2009 act, making it easier to detect and prosecute the offenders.

2 At what stage of the progress of a bill through parliament is the purpose of this bill explained? (1 mark)

The purpose of a bill is explained at the second reading speech.

3 marks)

Explain the role of the Scrutiny of Acts and Regulations Committee in relation to this act. (2

The Scrutiny of Acts and Regulations Committee looks at new bills as they make their passage through parliament. This usually occurs after the second reading speech. The role of the committee is to ensure that the bill does not trespass unduly on rights or freedoms or does not make individual rights or freedoms too dependent on administrative powers. The Scrutiny of Acts and Regulations

Committee is also responsible for examining compatibility statements created by the minister who introduces a bill to parliament. Compatibility statements are statements outlining the compatibility of the bill with the Charter of Human Rights and Responsibilities.

An extract from the compatibility statement in relation to this bill can be seen on pages 69-70 of

Access & Justice 10 th edition.

4 Discuss the view that the opposition party (the Liberal Party at this time) expressed in the second reading debates on the Crimes Amendment (Identity Crime) Act 2009 (2 marks)

The following extracts from comments made by Legislative Assembly member Mr Robert Clarke

(Liberal member for Box Hill) give some insight into the views of the Liberty Party at the time.

Mr Clarke (Box Hill) The bill has its origins in a March 2008 report of the Model Criminal Law Officers

Committee (MCLOC) of the Standing Committee of Attorneys-General entitled Final Report –

Identity Crime. That report made a range of recommendations, a number of which have been picked up in this bill and one of which has been departed from in this bill.

The MCLOC report contains some useful material outlining the nature and the extent of identity crime. It points out that identity crime can occur with the creation of fictitious identities, through the



manipulation of one's own identity, by changing one or more elements, or through the theft or assumption of a pre-existing identity which may be that of someone living or deceased.

The committee's report points out that identity crime can have a number of very serious consequences. Most obvious, perhaps, are financial impacts where there can be a direct financial impact such as the loss of savings. For businesses there are the costs of reporting and investigating identity crime cases, the cost of prevention and the cost of restoring the reputation of a business or organisation.

The report also points out that there can be indirect financial impacts in the form of damage to a person's credit rating, the creation of a criminal record in a person's name and the efforts that a person has to go to restore their standing and to have corrected the records that erroneously reflect the consequences of the identity crime.

...............................................

Although unrelated to identity crime, a final provision of the bill changes the requirements for where a court must record the sentence that would have been imposed on an offender if the offender had not pleaded guilty. This provision in the bill relates to provisions that were enacted not long ago by this Parliament and which provide explicitly that when giving a discount on a sentence because an offender has pleaded guilty, courts must specify the amount of the discount for that guilty plea. As it currently stands, section 6AAA of the Sentencing Act 1991 requires a sentence discount to be noted in the records of the court. The amendment in this bill proposes to say instead that the court must record or cause to be recorded, whether in writing or in another form, the amount of that discount.

In passing let me say that I am not completely convinced of the need for this amendment. I would have thought the provision as it stands gives a fair range of discretion to the court.

.......................................

I would have thought that was a rather unfortunate choice of words by the Attorney-General, to say the least, in describing the use of a fake ID to buy alcohol as relatively minor offending behaviour.

We know the community has a serious problem with binge drinking and excessive consumption of alcohol by under-age people. That choice of words by the Attorney-General sends entirely the wrong signal to the community. It almost implies a form of condoning or toleration of that sort of behaviour on the part of the government.

The Attorney-General's reference also points to a further difficulty with the bill. That is that all of these new offences only occur when the various matters that are covered by them are done with the intent to commit an indictable offence. Making, using or supplying identification information has to occur with the intent to commit an indictable offence to constitute an offence itself, and likewise with the possession of identification information or possessing equipment capable of making identification documentation.

Some sort of nexus to a further crime is needed to characterise the offence, because otherwise completely innocent activity would constitute an offence -- for example, possession of a colour photocopier would be possessing equipment capable of making identification documentation, or holding someone else's identification information in safe custody would also constitute an offence.

.......................................

In conclusion, the provisions in this bill may be of some assistance in law enforcement in dealing with some people who are caught possessing identification information with nefarious intent, or creating such information with that intent, or possessing equipment to make documentation with that intent. We hope the legislation will form a useful part of the arsenal used against identity crime, although it does have the flaws to which I referred earlier.



More importantly, a lot more needs to be done to help victims of identity crime repair the damage they have suffered. The certificate regime in this bill is likely to be near useless to many victims. I commend to the government consideration of putting in place mechanisms whereby the police or other authorities can issue a certificate to victims far closer to the time of commission of the offence. Victims can then put it to real and immediate use in trying to restore their situation from the loss they have suffered.

Source: Extracts from the Second Reading Speech Crimes Amendment (Identity Crime) Act 2009; 5

May 2009

See Page 71 of Justice & Outcomes 11 th edition for an extract from the Second Reading Speech

Crimes Amendment (Identity Crime) Act 2009 6 May 2009; Dr Bill Sykes, The National Party member for Benalla.

5 Evaluate the need for changes in the law, referring to the example of the Monash shootings.

(5 marks)

The need for a change in the law is often as a result of criminal events that occur in the community that are not adequately covered in existing criminal law. Identity crime is an area of law that is growing and existing law does not properly cover, although prosecutions have occurred under the crime of theft. It is difficult to prosecute a person who has committed identity crime, using the crime of theft, so the Labor Government realised there was a need for a change in the law to more adequately spell out the crime and make the success of detection and prosecution more likely.

However, people often see the ways in which the law should change differently. Some people think that new crimes should not be created. The difficulty for governments in situations such as this is gauging the wishes of the majority. Governments also generally have a particular philosophy they will follow when deciding which way to change the law.

If the law did not change to meet changing needs in society, people would be dissatisfied with the law, and be less likely to obey the law. If this were allowed to continue, the general running of society would become disrupted.

It is, however, important that the law does not change too frequently. If this were to occur, people would feel uncertain about what the law is and this could lead to the law being ignored.

The government and other members of parliament are voted into office to represent the wishes of those people who voted for them. They are therefore expected to reflect these wishes in laws that are passed by parliament. If this does not occur, the government may be voted out of office.

6 Analyse the ways in which change in the law can be influenced. In your analysis, comment on how the law-makers may have been influenced in relation to identity crime. (4 marks)

The question asks for analysis which requires you to look at ways laws can be influenced and make comment on your suggestions.

The media is able to inform the public of what has occurred and the need for a change in the law however the media may not cover the full range of opinions about the proposed change in the law.

If there is considerable media coverage on an issue it is likely to come to the attention of the government. Victoria Police would have been a loud voice in the community about the need to change the law to make it more possible to prosecute for identity crime. Victims of identity crime would also have been very vocal about the need for a change in the law.



Demonstrations are a way of getting public attention, and eventually the attention of the ministers, but in this instance the suggestion for a change in the law was coming from the Attorney-

General.

Petitions can be drawn up to inform members of parliament that some people in society believe that there is a need for a change in the law. Petitions have limited success, because there are so many presented to parliament, they are not regarded as particularly important, unless there is also a media campaign about the issue.

Formal law reform bodies may investigate a need for change in the law, drawing upon expert opinions and investigations, and inputs from the general public. These investigations are comprehensive and thorough; recommendations are made to parliament regarding legislative change, however parliament will decide the extent to which it will implement any recommendations.

7 Explain the purpose of the committee stage. (2 marks)

The committee stage of the progress of a bill through parliament is to examine the bill clause by clause to ascertain if there are any changes to the bill that need to be made in the interests of the public.

8 Describe the passage of a bill once it has been passed by the first house, before it becomes law. (3 marks)

 introduced to the second house (usually the upper house) where the title of the bill is read and copies of the bill are distributed

 the compatibility statement is read – this is compatibility to the Charter of Human Rights and

Responsibilities Act

 the second reading speech occurs where a member of the government in the second house

(usually upper house) explains the purpose of the bill to the house and debate takes place

 the committee stage, or consideration in detail occurs where each clause of the bill is examined in full

 the committee report is adopted

 the third reading occurs where the title of the bill is read out – there may be further debate but often there is not

 the bill passes the second house

 the clerk of parliament certifies the bill

 royal assent occurs.

9 Discuss the strengths and weaknesses of parliament as a law-maker. (8 marks)

Parliament’s main role is to make laws. It is the supreme law-making body in that it can change laws previously passed by the parliament and can override law-making by courts when the matter is in its jurisdiction, although the courts can interpret the words of the acts of parliament. It can make laws when the need arises, although parliament is not always sitting. There may be conflicting views about the proposed new law, and if the opposition or independent members hold the balance of power in the upper house, the proposed law may not be passed by the upper house without amendments and compromises.



Parliament is an elected body. Its members are elected by the people and therefore parliament represents the views of the people. However, there are two major parties and those people who voted for the party that did not get into government may be opposed to the philosophy of the government. It is the role of government to ascertain the wishes of the majority when deciding what laws should be put to parliament. If it does not do this it may be voted out of office at the following election.

Parliament is able to investigate a whole area of law, so it is better able to make laws that are more suited to the needs of the people. It has committees that are permanently set up and also forms special purpose committees to find out the how best to change the law. This process allows time for public debate and input. This can, however, take a long time and important changes in the law may be delayed.

The government is restricted in what laws it presents to parliament because there may be financial restraints. Also parliament can only make laws within its own jurisdiction.

The process of law-making through parliament is very time-consuming. Parliament is an elected body but because of time constraints and the need for expertise in certain areas, they delegate their law-making powers to unelected bodies, subordinate authorities. These subordinate authorities have many advantages such as being expert in their fields and more accessible to the public, but they may have too much power over people’s lives for a body that is not elected by the people.

The Parliament can pass laws when a need arises for the future (in futuro) but it may not necessarily be sitting at the time and if the matter is contentious it may be very time consuming.

Courts, on the other hand, can establish precedents that are to be followed in the future relating to a matter that has not been covered by parliament and therefore can deal with a matter when it arises. The problem with this type of law-making is that it is restricted to a matter that is brought before the courts and can it only deals with the issues that are relevant to the case before the courts.

See pages 78-79 of Justice & Outcomes 11 th edition for more information of strengths and weaknesses of law-making through parliament.




Essay – changing the law (Page 84)

‘Change in the law is necessary for the law to keep up with changing needs in society.’ Discuss this proposition using an example or examples of changes in the law or proposed changes in the law to illustrate points made. Your essay should include the following:

• discussion of reasons why laws may need to change using examples to illustrate points made. (4 marks)

• explanation of the role of the Victorian Law Reform Commission in assessing the need for change. (2 marks)

• analysis of methods used by individuals and groups to influence changes in the law. (6 marks)

• evaluation of the strengths and weaknesses of law-making through parliament. (8 marks)

(Total 20 marks)

This suggested response is given in dot points. An essay should not use essay points. It should be a discussion using the information highlighted here.

Reasons for changes in the law:

 Law needs to change to keep up with changing values in society and advances in technology. If the law did not change injustices would occur, and there could be confusion about the law as new situations arise. For example, the Crimes (Computers) Act 1988 was passed to deal with the



 issues arising from the use of computers and the Crimes Amendment (Identity Crime) Act 2009 was passed to deal with issues that have arisen as a result of the sophisticated use of computers to commit crime. As new developments arise there is need for further changes in the law. The law has created new laws to deal with stalking over the internet, further laws are needed to deal with bullying over the internet.

Society's values have changed in relation to what is acceptable behaviour in public. De facto couples and same-sex couples have become more acceptable in society but the law needed to be changed to avoid injustices occurring under old laws. Laws have been passed to ensure that de facto and same-sex couples are more on an equal footing to married couples when it comes to financial arrangements. The Family Law Amendment (De Facto Financial Matters and Other

Measures) Act 2008 (Cth) was passed to amend the Family Law Act 1975 to provide for oppositesex and same-sex de facto couples to access the federal family law courts on property and maintenance matters.

New threats to society and changes in society may necessitate that laws change in order to protect the community. For example, following the terrorism attacks in September 2001 a large number of laws were passed to protect against this threat. Also, changes in consumer behaviour have meant that parliament has had to legislate to protect consumers to ensure products are safe, are not misrepresented and so on. Alcohol abuse and binge drinking has become a concern of the community and a new law has been passed to put 70 per cent tax on ready-to-drink alcoholic drinks (alcopops). Another issue is the increase in youths carrying and using knives. The

Summary Offences and Control of Weapons Acts Amendment Act 2009 has been passed in an attempt to tackle the rising incidence of youths carrying knives. Under this new law on-the-spot fines can be given to people caught carrying illegal knives on the street.

 If laws were not reviewed and changed regularly, injustices would occur and people might lose confidence in the law. This could result in people being less likely to obey the law. A law that was outdated and inappropriate for today's society would be less acceptable, and would not be given the respect that should be given to the law. The members of parliament are elected by the people, and as such should represent the needs of the people. Parliament therefore needs to be



responsive to the electorate. Not all future circumstances can be envisaged by the law-makers and as new situations arise new laws need to be passed to deal with them.

See pages 39 – 43 of Justice & Outcomes 11 th edition for more information on reasons for changes in the law.

Role of the Victorian Law Reform Commission:

The Victorian Law Reform Commission is a formal law reform body. Its role is to investigate the need for changes in the law. It can investigate a matter fully and assess public opinion about the suggested changes in the law by consulting with members of the public and experts and holding public forums. The Victorian Law Reform Commission was asked in 2007 to investigate the decriminalisation of abortion. This was the result of many demonstrations, petitions and media coverage over time in relation to this issue.

The Abortion Law Reform Act 2008 (Vic.) reformed the law relating to abortion, put in place regulations in relation to health practitioners performing abortions and amended the Crimes Act 1958.

Analysis of methods used by individuals and groups in influencing changes in the law.

Individuals in society who are affected by inappropriate or unjust laws need to make their thoughts known to the law-makers. In this way they may influence a change of law. This is more likely to occur if many people voice their concerns about a law, or about the need for a new law. People can act independently by writing letters to the editor of a newspaper, gathering names on a petition to be presented to parliament, defying the law and gaining media attention, or even bringing a court case to test the law. People may also form groups to work towards influencing a change in the law. For example, GetUP is an online politically motivated action group that uses the internet to enlist likeminded people who want to bring participation back into democracy. The group launches campaigns to try to influence changes in the law through the internet. It provides an opportunity for everyone to have their say and support a campaign by adding their names to an online petition asking for a change in the law. There have been many demonstrations about the rights of couples in same-sex relationships. The Relationships Act 2008 established registers in Victoria for the registration of domestic relationships in Victoria.

For a law to be acceptable to the majority it must conform to the generally accepted values of the majority, although a law can be seen as generating community values. When the equal opportunity laws were first introduced, they may have been thought of by some as being ahead of community values in some respects, but could have been responsible for helping the community to become more tolerant of differences, and more aware of discrimination in our community. There have been numerous changes to these laws since to keep up with changing community values and expectations.

Very often however, there are different opinions on a particular issue. For example, former

Prime Minister John Howard signalled his opposition to allowing same-sex couples access to IVF programs. According to John Howard, children need a father and a mother. Jenny Macklin, the Joint

Senior ALP Vice President, on the other hand said that it was more important that a child be loved.

When there are strong conflicting views on a particular issue, it is likely that the law will remain unchanged. The Assisted Reproductive Treatment Act 2008 (Vic.) aims to allow a woman to undergo a treatment procedure if the woman and her partner, if any, have consented to carrying out the procedure and the woman is unlikely to become pregnant or unlikely to carry a pregnancy or give birth, other than by a treatment procedure or she is at risk of transferring a genetic abnormality or genetic disease to her child unless she undergoes a treatment procedure. The Patient Review Panel will be able to decide there is no barrier to the woman undergoing a treatment procedure.

For individuals or groups to be successful in influencing a change in the law, it is necessary for the desired change to be politically viable. That is, it must fit in with the political platform of the party in power, and must be economically viable. If there are strong opposing views in society, it is



unlikely that a change in the law will take place. For example, even though abortion has become more acceptable in society, it has taken the Victorian Parliament a long time to act on changing the law to allow abortions to take place legally. The Abortion Law Reform Act 2008 (Vic.) abolishes common law offences relating to abortion. The Right to Life Group have opposed this proposed change in the law for many years.

Some methods of influencing changes in the law are more effective than others. For example the law-makers are more likely to be influenced to initiate a change in the law if there is media support for the change and many people have expressed their views in favour of it in the media.

Demonstrations calling for a change in the law will often gain media coverage. Petitions are less likely to gain media support, but they are presented to parliament and brought to the attention of members of parliament. However, there are many petitions presented to parliament each day, and therefore their success may be limited. Defiance of the law can be a way of gaining media attention, but the law-makers are reluctant to take on board a suggested change that comes from individuals defying the law. Lobbying members of parliament can be an effective method of influencing changes in the law, but it is expensive to employ a lobbyist and this method is often only used by large corporations. Law reform bodies are asked by the government to investigate a change in the law, and therefore the result of their investigations is likely to be influential on the government and the parliament. Courts can change the law when a matter arises, but changes can only occur if a case is brought to court. Even then, changes can only be made regarding the particular issue before the court.

Evaluate the strengths and weaknesses of law-making through parliament:

 Parliament’s main role is to make laws. It is the supreme law-making body in that it can change



 laws previously passed by the parliament and can override law-making by courts when the matter is in its jurisdiction, although the courts can interpret the words of the acts of parliament.

It can make laws when the need arises, although parliament is not always sitting. There may be conflicting views about the proposed new law, and if the opposition or independent members hold the balance of power in the upper or lower house, the proposed law may not be passed by the either house without amendments and compromises.

Parliament is an elected body. Its members are elected by the people and therefore parliament represents the views of the people. However, there are two major parties and those people who voted for the party that did not get into government may be opposed to the philosophy of the government. It is the role of government to ascertain the wishes of the majority when deciding what laws should be put to parliament. If it does not do this it may be voted out of office at the following election.

Parliament is able to investigate a whole area of law, so it is better able to make laws that are more suited to the needs of the people. It has committees that are permanently set up and also forms special purpose committees to find out the how best to change the law. This process allows time for public debate and input. This can, however, take a long time and important changes in the law may be delayed.

 The government is restricted in what laws it presents to parliament because there may be

 financial restraints. Also parliament can only make laws within its own jurisdiction.

The process of law-making through parliament is very time-consuming. Parliament is an elected body but because of time constraints and the need for expertise in certain areas, they delegate their law-making powers to unelected bodies called subordinate authorities. These subordinate authorities have many advantages such as they are expert in their field and more accessible to the public, but they may have too much power over people’s lives for a body that is not elected by the people.



 Parliament can pass laws when a need arises for the future (in futuro) but it may not necessarily be sitting at the time and if the matter is contentious it may be very time consuming. Courts, on the other hand, can establish precedents that are to be followed in the future relating to a matter that has not been covered by parliament and therefore can deal with a matter when it arises. The problem with this type of law-making is that it is restricted to a matter that is brought before the courts and only the issues that are relevant to the case before the courts.

See pages 78-79 of Justice & Outcomes 11 th edition for a list of strengths and weaknesses of lawmaking through parliament.



CHAPTER 3


Structured questions – The Constitution and the High Court

(Page 128)

1 Explain the role of the Commonwealth Constitution. (4 marks)

A constitution is a set of rules setting out the nature, functions and limits of government. The role of a constitution is to determine the powers and duties of the government. Some constitutions guarantee certain rights to the people of the country.

The Commonwealth of Australia Constitution Act 1900 (UK) (the Constitution) is the most important legal and political document affecting the lives of Australians. It is referred to as the

Commonwealth Constitution. Its role is to:

 facilitate the division of law-making powers by setting out what the Commonwealth Parliament can do with respect to law-making, that is, the types of laws that can be passed by the

Commonwealth Parliament. The states can make laws in any area not mentioned in the

Constitution, or not specifically made exclusive to the Commonwealth Parliament

 provide a legal framework for the creation of the Commonwealth Parliament and outline the structure of the Commonwealth Parliament, including the composition of the House of

Representatives and the Senate

 provide for direct election of the members of the House of Representatives and the Senate by the people of the Commonwealth of Australia

 give the High Court the power to interpret the Constitution if the need arises.

2 Describe the division of law-making power under the Commonwealth of Australia

Constitution Act 1900. Give an example of each type of law-making power. (4 marks)

The Commonwealth Parliament was given specific powers, which are listed or enumerated under

Section 51 of the Commonwealth of Australia Constitution Act 1900; for example, marriage and bankruptcy. Some of these powers are concurrent with the states. That is, the state parliaments and the Commonwealth Parliament share law-making powers and can both make laws in these areas, although if the state law and the Commonwealth law are in conflict, Section 109 states that the

Commonwealth law prevails and the state law is declared invalid, to the extent of the inconsistency.

Examples of concurrent powers include taxation and external affairs.

Some of the specific powers were made exclusive by other sections of the Constitution, meaning that only the Commonwealth Parliament can pass laws in these areas; for example S115 made coining money exclusive to the Commonwealth.

The rest of the law-making powers that are not listed in the Constitution were left with the states at the time of federation. These powers are known as residual powers; for example, criminal law and public transport.

3 Explain the limitations that the Commonwealth Constitution places on the law-making powers of the state and Commonwealth parliaments. (8 marks)

Limitations on state power include:



 the states are limited from making law where the Commonwealth Parliament holds exclusive power, such as raising military forces, coining money and levying customs and excise duty

 under S92, trade must be free and therefore the states are not able to prohibit trade between the states

 the power of the states could be limited in areas of concurrent power if the Commonwealth

Parliament passes legislation that is in conflict with the states’ laws, because Commonwealth

Parliament power prevails over state parliaments according to S109

 the states are prevented from levying customs and excise duty.

See page 98 of Justice and Outcomes 11 th edition for more detail.

Limitations on Commonwealth power include:

 the Commonwealth cannot legislate in any areas of residual powers, as it has not been given law-making powers in these areas. The Constitution guarantees that the states’ constitutions, powers and laws remain in force

 under S116 the Commonwealth is prevented from legislating with respect to religion – it cannot establish, impose or prohibit a religion, thereby guaranteeing freedom of religion

 the Commonwealth cannot pass legislation that discriminates against people on the basis of the state in which they live (S 117)

 the Commonwealth cannot give preference to one state over another

 under S92 the Commonwealth cannot restrict free trade between states, although since the case of Cole v. Whitfield (1988) some restrictions are the movement of goods between states are allowed

 the Commonwealth is prevented from acquiring property without paying just compensation

 the Commonwealth Parliament is unable to change the provisions of the Constitution – this can only be done by a successful referendum. Section 128 states the mechanism for changing the

Constitution, which is quite onerous

 a Commonwealth body cannot form a body that combines judicial and legislative powers

 the Commonwealth body cannot change High Court decisions, unless there has been a referendum to make a change to the Constitution.

4 Explain the significance of S109 of the Commonwealth Constitution. (2 marks)

Section 109 states that if a section of the Commonwealth law and the state laws are in conflict, then the Commonwealth law prevails over the state laws, and the inconsistent state laws will be declared invalid. For example, the Commonwealth Marriage Act prevails over state marriage acts where there is an overlap, and the sections are different.

5 Describe how the words in the Commonwealth Constitution can be changed. (4 marks)

The only way that the actual words in the Constitution can be changed is through a successful referendum. A Constitution alteration act must be passed by both houses of the Commonwealth

Parliament (or one house twice) requesting a change in the Constitution. The proposed change is then put to the electorate in the form of a referendum, asking the voters to vote either yes or no to the change.

The referendum must be passed by a majority of voters in the whole of Australia (including the territories) and a majority of people in a majority of states (i.e., at least four out of the six states must be ‘yes’ states). This is known as a double majority. If a change affects a particular state, then



that state must also agree to it. The change must then receive royal assent from the Governor-

General, as the Queen’s representative.

6 Explain four factors that are likely to affect the success of referendums. (8 marks)

Factors affecting the likely success of referendum proposals include:

 timing – The timing of referendums(the plural of referendum can also be referendums) could contribute to their lack of success. Because of the expense of holding a referendum, they are often held at the same time as an election. Voters are likely to be concerned about which party to vote into office, rather than considering the referendum being put to them at the same time.

This can take the focus away from the referendum.

 double majority – The strict requirement of a double majority means it is not an easy task to amend the Constitution in order to reflect the will of the voters. In particular, the requirement of a majority of electors in a majority of states is difficult to satisfy. While 13 of the 44 referendum proposals have received the support of a majority of Australian voters overall, five of these did not satisfy the majority of voters in a majority of states provision. The 1937 referendum to change the Constitution to empower the Commonwealth Parliament to make laws with respect to air navigation and aircraft and remove the restraints imposed on the Commonwealth

Parliament by section 92 was defeated. The majority of Australians voted in favour of this proposal (53.6 per cent) but there was a majority of voters who voted ‘yes’ in only two states

(Victoria and Queensland) so the proposal was defeated.

 lack of bipartisan support – The proposed changes most likely to succeed are those that are supported by both major parties (bipartisan support) and which cover issues the voting public can relate to. If the opposition political party is against the proposed changes, the information from both parties can become confusing. A referendum is democracy at work where the people have their say. Both major political parties have been unable to resist the temptation of trying to take political advantage in relation to any proposed changes, without proper consideration of the best outcome for the Constitution and the Australian system of government.

 confusing information – Information is sent to all households outlining the reasons for and against the proposed change to the Constitution. Members of political parties discuss the reasons for and against the change in the media. This can lead to the information being very confusing. When there is confusion in this way, voters usually decide to vote against the proposal. Further confusion is caused when more than one issue is raised in the same proposal.

Sometimes voters agree with some parts of the proposal but not others. In this instance they have no choice but to vote against the proposal.

 voter conservatism – Voters tend to be conservative and prefer to accept the Constitution as it is rather than change to something that they are not sure how it will work. A referendum was held in 1999 to see if the Australian people wanted to change the words in the preamble to the

Constitution, and whether Australia should become a republic. Both proposals were rejected.

People were unsure about what model of a republic was the best for Australia and how this change would affect their lives.

It may well be that there has been a growing acceptance of the

Constitution over the years, and a suspicion of efforts to alter it.

 opposition in the community – Sometimes there may be general support for a referendum across both major political parties, but there is strong opposition in the community. In 1926 the industry and commerce proposal had strong support in parliament from both political parties but was defeated. There was strong and very vocal community opposition to this proposal. In

1988, the referendum relating to rights and freedoms was defeated. The extension of religious freedom contained in this proposal was strongly opposed by many church representatives and by independent schools, both fearful of the future of state aid to church and independent



schools.

 erosion of states’ rights – The Constitution is the basis of the federal system and voters in the states may see any changes as not in their interests. Premiers have warned voters of the need to protect states’ rights from the movement of law-making power to the Commonwealth. All 17 attempts to increase Commonwealth economic power have been rejected by the voters.

 high cost of holding a referendum – The cost of holding a referendum is high and an alternative way of achieving the same result may be used instead of holding a referendum. The proposal in

1996 to put a referendum to the people to give power to the Commonwealth Parliament to make laws on the ownership of guns had support from both major parties and therefore it had a very good chance of success. However, the expense of holding a referendum was avoided by the states agreeing to implement uniform restrictions on gun ownership.

7 Analyse the impact of referendums on the divisions of law-making power. (4 marks)

Actual changes to the Constitution under S128 have been few and not all referendums change the division of powers. Those changes that do alter the division of powers between the states and the

Commonwealth have generally given more law-making power to the Commonwealth Parliament.

This usually results in the law-making power of the states becoming more restricted because, under S109 of the Constitution, if there is an inconsistency between a section of a

Commonwealth law and a section of a state law, the section of the Commonwealth law prevails.

Of the 44 referendum proposals that have been put to the voters, only eight of these have been successfully passed. The double majority is often difficult to obtain, particularly the majority of voters in a majority of states provision. Factors such as voters resisting change, not understanding the change, or being apathetic, may result in them voting ‘no’. For a referendum to be successful it needs to be supported by both the major parties, otherwise voters are split between the views of the major parties. For example changing the Constitution to make it possible for the Commonwealth

Parliament to make laws relating to Aboriginal people had the support of both major political parties. However, when there is uncertainty about the effects of a change in the Constitution, people are more likely to vote against it. For example, the recent referendum to change to a republic had a great deal of support, but also had a large group of people who were against the change.

Consequently, the referendum was not successful.

8 How can High Court interpretations of the Commonwealth Constitution change the division of powers between the Commonwealth and state parliaments? Explain using examples to illustrate the points made. (8 marks)

The High Court cannot change the wording of the Constitution but can change the balance of power between the states and the Commonwealth by their interpretation of the words in the Constitution.

The High Court can give words or phrases a wider meaning. Whenever the High Court is called on to interpret any section or word, the interpretation adds meaning to the Constitution and can change the division of law-making powers between the states and the Commonwealth. This affects the law-making powers of state and Commonwealth parliaments. For example, the interpretation of the words 'external affairs' in the Franklin Dam case to mean any area that is covered by an international treaty means that the Commonwealth Parliament now has greater power to make laws in areas that were otherwise areas of residual power. The High Court's interpretation in the Uniform Tax case made the states more financially dependent on the states, which has led to the Commonwealth having greater influence in the areas of residual power. For example, under S96 (tied grants) and as a consequence of the Roads case, the Commonwealth



Parliament can grant money to the states on the condition that it is used in a way suitable to the

Commonwealth, thereby having greater power in the residual power areas.

In most instances High Court decisions have led to a shift of law-making power from the states to the Commonwealth. However, not all the early decisions favoured the Commonwealth. In the Melbourne Corporation v. Commonwealth (1957) (the State Banking Case) the High Court decided to uphold the rights of the states to be free from legislative interference by the

Commonwealth Parliament.

Disputes generally arise because a state parliament or the Commonwealth Parliament has passed an act thought to be outside its constitutional power. Individuals or groups can challenge the act in the High Court if they think the act is legislating in areas outside the power of the particular parliament, and they are affected by that act. A state parliament can launch a challenge if it thinks the Commonwealth Parliament has gone outside its powers; the Commonwealth Parliament can launch a challenge against a state parliament if it thinks that state parliament has gone outside its powers.

The High Court must listen to the facts of the case and decide whether an act that has been passed is unconstitutional. That is, the High Court will either confirm the right of the law-maker to make the law or deny that right. If the High Court confirms the right of the Commonwealth

Parliament to make a law, and it conflicts with a state law on the same issue, then according to S109 of the Constitution, the Commonwealth law prevails over the state law, making the state law invalid in so far as it conflicts with the Commonwealth law.

9 Explain what must occur for the division of law-making power to change when the states decide that the Commonwealth should have power in a particular issue, for example ex-nuptial children. (2 marks)

The states can refer any of their residual law-making powers to the Commonwealth. This may occur when the states find there is an area of law-making that would be better under Commonwealth jurisdiction because the law needs to be uniform across the country. However, the states have generally been reluctant to hand over any of their powers to the Commonwealth Parliament.

S51(xxxvii) gives the Commonwealth Parliament power over any matters referred to it by the states, but that power can only operate in those states that have referred their power to the

Commonwealth.

The process of referral of law-making power involves the states agreeing to hand over an area of power to the Commonwealth, such as terrorist acts inside Australia. When this decision has been reached, the state parliaments pass an act giving their law-making power to the

Commonwealth and the Commonwealth Parliament passes an act accepting this power from each state that has referred its power.

The impact of the referral of law-making powers is that there is a change in the division of powers between the states and the Commonwealth in favour of the Commonwealth. Areas of referral of powers from the states to the Commonwealth include, ex-nuptial children, acts of terrorism, property matters for de facto and same-sex couples and workplace relations.

10 Evaluate one method of changing the division of law-making power from the states to the

Commonwealth. In your evaluation discuss the strengths and weaknesses of that method.

This question requires discussion. Some points that could be included in your discussion are shown below. Dot points should not be used in this type of question.



Strengths of High Court interpretations as a method of changing the division of law-making power from the states to the Commonwealth



A matter can be dealt with when a case is brought before the court and an injustice can be rectified.



The High Court judges are experts in constitutional law and are therefore very suited to interpreting the words of the Constitution and applying the Constitution to the case before the court.



The High Court can act as a check against any abuse of power by the states or the

Commonwealth Parliament.



The High Court can keep the Constitution relevant and up to date by interpreting the words in the Constitution.

Weaknesses of High Court interpretations as a method of changing the division of lawmaking power from the states to the Commonwealth



The High Court cannot change the words in the Constitution.



The High Court must wait for a relevant case to be brought before the courts before it can





 interpret the words in the Constitution.

The party bringing the case must have standing.

It is expensive to bring a case to the High Court.

The High Court may be conservative in its interpretation of the Constitution and therefore changes in interpretation may not be made.



The decision in a case brought before the High Court may depend on the composition of the

High Court. Some justices are more conservative in their approach to interpreting the

Constitution.




Report – Changing the division of power (Page 128)

This task is an investigation. Students will choose a recent referral of powers, High Court decision or referendum to investigate.

Referral of powers

A number of recent referrals of powers shown in Justice & Outcomes 11 th edition on page 124 and

125 can be investigated. For example,

 water 2008

 workplace relations new referral in 2009

 consumer credit in 2009

High Court decision

The following case could be an interesting case to investigate and is relevant to the interpretation of the Constitution. A short summary of the case is shown below.

PAPE v THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA & ANOR

(S35/2009)

Writ of Summons: Issued 26 February 2009

Special Case: Filed 17 March 2009

This Special Case involves the legality of the Federal Government's proposed $900 tax bonus to taxpayers. The Tax Bonus for Working Australians Act (No 2) 2009 (Cth) ("the Act") was assented to on 18 February 2009. Section 5 of the Act sets out the entitlement of a person to the payment of a tax bonus for the 2007-08 income year. The plaintiff is purportedly entitled to receive a tax bonus of

$250. He contends that the payment of the tax bonus is characterised as a gift and is not authorised on the grounds that the Act is not a law with respect to taxation as provided by s 51(ii) or any other paragraph of s 51 of the Constitution and as such is invalid. He also claims that the payment of the tax bonus is not authorised on the grounds that the Act fails to comply with ss 81 and 83 of the

Constitution because the Act contains no provision which lawfully appropriates money for the purposes of the Commonwealth.

The defendants claim that the Act is valid law. The heads of power under the Constitution which are relied on to support the Act are: the appropriations power and the incidental power; the nationhood power; the external affairs power; the interstate and overseas trade and commerce power; and the taxation power.

Notice of a Constitutional Matter has been given as required by s 78B of the Judiciary Act.

The Special Case states the following questions for consideration by the Full Court:

• Does the Plaintiff have standing to seek the relief claimed in his Writ of Summons and Statement of Claim?

• Is the Tax Bonus for Working Australians Act (No 2) 2009 (Cth) valid because it is supported by one or more express or implied heads of legislative power under the Constitution?

• Is payment of the tax bonus to which the plaintiff is entitled under the Tax Bonus for Working

Australians Act (No 2) 2009 (Cth) supported by a valid appropriation under ss 81 and 83 of the

Constitution?

• Who should pay the costs of the special case?

Other cases that could be of interest are shown below.



JOHN HOLLAND PTY LTD v VICTORIAN WORKCOVER AUTHORITY (M16/2009)

Date Case Stated referred to Full Court: 26 June 2009

ICM AGRICULTURE PTY LTD & ORS v THE COMMONWEALTH OF AUSTRALIA & ORS (S24/2009)

Date of Special Case: 8 July 2009

BAKEWELL v THE QUEEN (D5/2009)

Court appealed from: Court of Appeal of the Supreme Court of the

Northern Territory [2008] NTSC 51

Date of grant of special leave: 1 May 2009

INTERNATIONAL FINANCE TRUST COMPANY LIMITED & ANOR v NEW SOUTH WALES CRIME

COMMISSION & ORS (S72/2009)

Court appealed from: New South Wales Court of Appeal [2008] NSWCA 291

Date of judgment: 6 November 2008

LANE v. MORRISON & ANOR (C3/2008)

Date of referral to the Full Court: 16 February 2009

Referendums

No referendums have taken place in the five years prior to 2010. This choice is only relevant if a referendum takes place in the five years prior to your study of this topic.



CHAPTER 4


Structured questions – Protection of rights (Page 187)

1 Explain three different approaches to the protection of rights. (6 marks)

Different approaches to the protection of rights

Express rights entrenched in a constitution cannot easily be changed. The process for changing any of these rights is laid down in the relevant constitution and this process must be followed by present and future governments (express rights are usually changed by a referendum).

Statutory rights are contained in a bill of rights set out in a statute (or act of parliament), which contains rights that can be amended or repealed by parliament. These are express rights but are not entrenched in a constitution. Parliament is a supreme law-making body, that is, a law-making body that prevails over all other sources of law and therefore the bill of rights cannot be overridden by a court or regulation but can be amended by parliament.

Rights protected by legislation and common law where there is no bill of rights. Australia has five express rights that are entrenched in the Constitution, but human rights are mostly protected by acts of parliament such as the Sex Discrimination Act 1984 (Cth) and the Racial

Discrimination Act 1975 (Cth) and common law.

2 Describe the ways that rights are protected in Australia. (3 marks)

In Australia there are some express rights set out in the Constitution but most rights in Australia are protected by common law and legislation, such as the Racial Discrimination Act 1975 (Cth).

3 Analyse the Lange case (on page 145) and explain how this case is an example of the High

Court’s role in the protection of rights in the Constitution. (8 marks)

The Commonwealth Constitution does not contain a bill of rights. It does, however, provide protection for a limited number of rights, such as the right to freedom of religion.

The Constitution protects Australians in their dealings with the Commonwealth Parliament.

It does this by placing restrictions on the law-making powers of the Commonwealth Parliament and making provision for the High Court of Australia to act as the final arbiter of the power of the

Commonwealth. The Constitution also provides for representative government and responsible government. This means that if a government is not protecting the rights of citizens, the citizens can vote the government out of office at the next election.

In the Lange case the High Court is protecting the implied right of freedom of political communication. The implied right to freedom of political communication was established in

Australian Capital Television Pty Ltd v. Commonwealth (1992) and other High Court cases. In the

Lange case, the High Court confirmed this right and went further in that the right to freedom of political communication extended to any time, not just before an election.

In Australian Capital Television Pty Ltd v. The Commonwealth of Australia (No 2) (1992), the

High Court found that a Commonwealth act that restricted access to political broadcasts on radio



and television during referendums and election campaigns for both the Commonwealth and the states was invalid. The Commonwealth act was the Political Broadcasts and Political Disclosures Act

1991. The reason for their decision was that the Constitution both establishes and entrenches the system of representative government. If the voters were not able to hear political broadcasts in the lead-up to an election, their ability to make an informed decision would be impaired. Therefore, any law that restricted access to political broadcasts was unconstitutional.

The right of freedom of political communication is not a freedom to communicate. It is a right of members of the Australian community to be free from laws that effectively prevent communication with each other about political and government matters. Freedom of communication on matters of government and politics is essential for the system of representative government that is provided for in the Constitution.

The High Court stated that state, territory and Commonwealth legislation and common law must conform to the right to freedom of political communications implied in the Constitution.

The High Court considered the implied right to freedom of political communications and its effect on defamation laws. The High Court declared that the common law of defamation had to recognise that ‘each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia’.

4 Choose a case from your selected country and analyse how this case is an example of the protection of rights in that country. (6 marks)

This question depends on the country chosen for study.

5 Evaluate the means by which rights of Australians are protected by the Commonwealth

Constitution, and the extent of this protection. In your evaluation, discuss structural protection, express rights and implied rights. (15 marks)

The protection of rights is a high priority for people living in a democratic society. Every person has a right to voice their opinion on the treatment of themselves and others.

The most basic human rights that should be protected were set out by the United Nations in the 1948 Universal Declaration of Human Rights, which included the right to freedom from discrimination, protection from unlawful detention, a presumption of innocence when charged with a criminal offence, protection from inhuman or degrading punishment, right to marry and own property, and freedom of religion, conscience and political expression.

There are many other international treaties that set out in more detail the sorts of rights that ought to be protected. However, the rights set out in the international treaties that Australia has signed do not automatically become part of Australian law. It is necessary for the law-makers in

Australia to protect these rights through legislation and common law.

Some countries, such as the US, have constitutions that contain a bill of rights, which protects the rights of their citizens. Australia does not have a bill of rights. It is left up to the legislatures to pass legislation to protect the rights of individuals and groups. For example, all states have passed anti-discrimination laws that make it unlawful to discriminate against people on various grounds. In addition, the Commonwealth Parliament has legislated to make sex, race and disability discrimination unlawful. Common law has also built up a body of law involving the protection of rights. For example, the right to silence when arrested or on trial for a criminal offence is a right that has always existed under the common law, although this has been eroded to some extent because



people can be required to give their name and address in certain circumstances. Common law rights can be removed by parliament legislating to overrule the common law.

The problem is that it is left up to the government of the day to ensure that individuals’ rights are protected by introducing new laws when new situations arise, for example, laws to protect the financial rights of same-sex couples if they separate or one partner dies. For controversial laws to be passed by parliament, it may be necessary to get the backing of the government and independents in the lower and upper houses of parliament. Courts create a precedent on an issue, but it is up to a person or group taking a matter to court (usually on appeal).

An example of a controversial law is the right to die with dignity. It is possible to turn off lifesaving machines if a person is terminally ill, but it is not possible to help a person to die (voluntary euthanasia). Some people suffer terrible pain and suffering and loss of dignity while waiting to die. It would be difficult to gain the support of both houses on this issue. The courts however, can make decisions relevant to this issue. For example, a court could find a person not guilty of murder, who had clearly helped a person to die and who was following the wishes of the deceased.

There are five express rights in the Commonwealth Constitution. The right to freedom of religion under S116 provides that the Commonwealth Parliament cannot pass a law that establishes a state religion, imposes any religious observance, prohibits the free exercise of any religion or requires a religious test as a requirement for holding any Commonwealth office.

Under S92, there is a right to free trade and commerce, including freedom of movement.

This right prevents parliament from treating interstate trade differently from trade within a state. It provides freedom of movement between states, without burden or hindrance.

S117 provides the right not to be discriminated on the basis of which state a person resides.

S51(xxxi) provides the right of individuals to receive just terms when property is compulsorily acquired by the Commonwealth. This means that fair compensation for property must be paid. The Commonwealth can only acquire property for a purpose within its jurisdiction, for example, airports and national parks. The property owner may be forced into selling against his or her wishes.

There is a right to trial by jury under S80 of the Constitution for indictable offences.

However, this is a limited right because most indictable offences are under state law. Also, the

Commonwealth can avoid trial by jury for a particular crime by declaring that the offence is a summary offence.

Rights can be implied in the Constitution by the High Court. This is the case relating to freedom of political communication. The case that first dealt with this issue was Australian Capital

Television v. The Commonwealth (1992). Other cases have confirmed this right and the Lange case extended this right to include the right to political communication at any time.

The structure and text of the Commonwealth Constitution 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. For example, the Constitution provides for:

 responsible government

 representative government

 separation of powers and the High Court of Australia as a final arbiter of the power of the

Commonwealth.

Representative government is described in the text of the Commonwealth Constitution.

Representative government refers to a government that represents the view of the majority of the people. Under Ss7 and 24, the Senators and members of the House of Representatives must be elected by direct vote of the people as representatives of the people. S41 grants the right to vote in a federal election to anyone who has the right to vote in state elections. This is a limited right.

S53 gives legal recognition for the principle of responsible government. The government cannot operate unless it is able to collect tax and spend money. Only the lower house can initiate



appropriate 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.

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 principle of separation of power protects the rights of individuals by ensuring that there is no abuse of power and no one arm of government is able to take on more power than it should in the interests of individuals’ rights. The legislative power, the power to make laws, resides with the parliament. The executive power to administer the laws and manage the business of government is vested in the governor-general as the Queen’s representative, although in practice it is carried out by the prime minister, senior ministers and government departments. The executive power and the legislative power are combined in our political system because the prime minister and ministers are also members of the parliament. However, the judicial power, the power given to courts and tribunals to enforce the law and settle disputes, which is vested in the High Court and other courts, is kept separate from the other two powers at a federal level. This ensures that the judiciary can provide checks and balances on the legislative and executive powers. No one body can make law, administer law and also rule on its legality.

6 Compare the approach adopted for the constitutional protection of rights in Australia with one of the following countries; the United States of America, Canada, New Zealand or South Africa.

(12 marks)

See pages 152-185 of Justice & Outcomes 11 th edition for more comparisons between the approaches taken by Australia and the United States of America, Canada, New Zealand or South Africa.



CHAPTER 5


Case study – Deing v. Tarola (Page 236)

1 To what extent are judges able to make law? Discuss. (2 marks)

Judges can make law by creating a binding precedent that future courts, lower in the same hierarchy, are bound to follow. However, this can only occur if a matter is brought to court. In criminal cases the case must be appealed because a precedent cannot be created if there is a jury.

An appeal court does not have a jury. A precedent in a civil case can be created at the first hearing of the case if there is no jury.

Law-making by courts is dependent upon someone that feels they have been treated unjustly being prepared to take the matter to court (and sometimes to take it appeal). This is expensive and time-consuming and can be traumatic.

In the Deing v. Tarola case, the accused was charged with possessing and carrying a regulated weapon – in this case a studded belt – under section 6 of the Control of Weapons Act. The

Magistrates’ Court found that a studded belt constituted a regulated weapon as defined in the

Control of Weapons Regulations. This case was taken on appeal to the Supreme Court where Justice

Beach created a precedent to be followed in the future.

2 Explain the doctrine of precedent. (4 marks)

Precedent refers to the decisions of courts that must be followed by other courts. Note that it is the reason for the decision that is to be followed, not the outcome of the case. Precedent can be either binding or persuasive. Binding precedent must be followed by courts lower in the court hierarchy than the one in which the precedent was set. It is the ratio decidendi that is the binding part of the precedent. Persuasive precedent is precedent that a court is not bound to follow, but it still may influence a decision. Persuasive precedent includes decisions made by courts lower in the court hierarchy, decisions made by courts in other hierarchies, and obiter dictum statements.

In the Deing v. Tarola case, Justice Beach of the Supreme Court had to decide whether the

Magistrates’ Court was correct in finding that the studded belt worn by the accused in this case was a regulated weapon within the meaning of the Control of Weapons Act and the Control of Weapons

Regulations. That is, he had to give meaning to the term ‘regulated weapon’ within the act.

See pages 193-205 of Justice & Outcomes 11 th edition for more information on the doctrine of precedent.

3 Identify two reasons for statutory interpretation. (2 marks)

Reasons could include:



The act may be silent on an issue. For example, the Control of Weapons Act did not provide a definition of ‘weapon’, so the court had to give meaning to this word for the case.



The meaning of the words may change over time, so it is up to the court to interpret them to give them their current meaning. It could be argued that what has been used as a weapon may have changed over time, with items with raised studs being used as weapons.





The meaning of words may be ambiguous. Words and phrases in legislation attempt to cover a broad range of issues, so it may not be clear what the exact meaning is to be used to cover the specific situations that arise in cases.

See pages 219-220 of Justice & Outcomes 11 th edition for more information.

4 Explain the effect of statutory interpretation. (2 marks)

Once the courts have interpreted an act, the ratio decidendi of the case forms part of the law that is followed in the future. The words in the act are given meaning and the parties to cases in the future are bound by the decision. The precedent created provides consistency and predictability in that people can, to some extent, predict the outcome of a similar case in the future. A precedent can be overruled or reversed by a higher court or can be abrogated by parliament.

In determining the meaning of the word ‘weapon’, the judge looked for definitions of the word in extrinsic materials such as dictionaries and legal journals/texts. He also looked to interpretations of the words ‘offensive weapon’ in previous cases – another source of extrinsic material i.e. materials outside of the legislation being interpreted. Intrinsic materials – those materials within the act itself – included other sections of the legislation and regulations; they could also have included definitions sections within the act, headings, margin notes, preamble, schedules, and so on.

See pages 221-222 of Justice & Outcomes 11 th edition for more information on the effect of statutory interpretation.

5 Discuss the strengths and weaknesses of law-making through courts. (6 marks)

When a case comes before a court, judges are required to make a ruling on that case, and so are able to change the law quickly. However, courts cannot change the law unless a case is brought before them, which may take some time, and also requires a willing party to proceed with the court action.

Judges are experts in the field of law and its applications, so they are in a good position to make laws, as they deal with cases continuously. Also, as judges are appointed, rather than being elected, they are not subject to the whims of the electorate. Thus, judges can make laws that are necessary, rather than have to worry about making popular laws in order to be re-elected. However, as unelected law-makers, judges are not democratic, and therefore they may not necessarily reflect current views of the community in their law-making.

Courts are able to fill in the gaps in the law in areas that have not been considered by parliament, and so are able to develop areas of law. Further, through the interpretation of statutes courts are able to give meaning to the laws made by parliament. These points mean that the courts are able to deliver a more just result to the parties in a case, and create just laws. However, such law-making relies on having progressive judges, who are willing to engage in law-making. Also, parliament is the sovereign law-maker, and can abrogate or override court-made law at any time, as long as they have the legislative power to do so.

Techniques such as distinguishing, overruling and reversing previous decisions help to keep the law flexible, as inappropriate precedent may be able to be avoided, or changed and developed further. However, courts may not be able to avoid precedent, and may be bound to follow old precedent; also, conservative judges may decide not to avoid or develop old precedent further, believing that it is up to parliament to make laws.




6 Explain the relationship between courts and parliament in law-making. (4 marks)

There are a number of key relationships that exist between courts and parliament, including:

 parliament passes legislation that establishes courts, and determines their structure and jurisdiction

 courts apply legislation to the cases before them and uphold and enforce the legislation

 courts may interpret the meaning of words within the legislation, in order to give them meaning to apply to the case before the court

 parliament may codify precedent that is created by courts i.e. it may include the precedent in their legislation

 parliament may abrogate or override precedent made by the courts. As the supreme law-making body, parliament may change any existing law at any time, as long as it has the power to do so

 comments made by judges in cases may influence parliament in their legislative program.

(Analysis is required.)




Case study – Kevin and Jennifer’s marriage (Page 236)

1 What was the outcome of the trial and the appeal by the Attorney-General to the Full Court of the Family Court? (1 mark)

The outcome of the hearing in the Family Court and the appeal in the Full Court of the Family Court was that Kevin and Jennifer's marriage was valid.

2 Which words in the Marriage Act were being interpreted? Explain how these words were interpreted. (2 marks)

The words 'man', 'woman' and 'marriage' were required to be interpreted. The Full Court interpreted the word 'man' to include a person who was a man at the time of the marriage, such as

Kevin. The word woman was interpreted to include a post-operative transsexual person who is ‘both anatomically and psychologically female'. The Full Court also interpreted the words 'man' and

'marriage' according to today's attitudes, rather than according to the attitudes at the time the

Marriage Act was passed. The definition of marriage was to refer to a man and a woman as they exist at the time of the marriage, not necessarily at the time of their birth.

3 Why did the Full Court say the case of Corbett v. Corbett was persuasive but not binding?

What was the finding in this case? Did the Full Court of the Family Court agree with the decision in

Corbett v. Corbett? Explain. (4 marks)

The precedent set in Corbett v. Corbett was persuasive but not binding on the Full Court of the

Family Court because it was an English case. The Full Court chose not to follow this persuasive precedent. In the Corbett case a marriage between a woman and a man who had undergone a sex change was found to be an invalid marriage. The Full Court of the Family Court did not agree with the decision in Corbett v. Corbett. If they had followed this case they would have had to find against the marriage of Kevin and Jennifer. In the Kevin and Jennifer case the court the Full Court of the

Family Court upheld the initial decision of Justice Chisholm. Justice Chisholm said the question of whether someone was a man or a woman should be determined at the date of the marriage and he declared the marriage of Kevin and Jennifer to be valid. Kevin has a passport that declares him to be male, and he has been living life as a man.

4 marks)

Discuss the reasons for statutory interpretation. In your discussion refer to this case. (6

The reasons for statutory interpretation include:

 the act might be silent on an issue (the word ‘man’ is not defined in the act)

 mistakes could occur during drafting of the act

 the meaning of the words may be ambiguous (‘man’ and ‘woman’ could be ambiguous)

 the intention of the act might not be clear enough (not clear if the act includes people who have



 changed sex) the meaning of words can change over time there might be an inconsistency within the act



 an act might not consider future circumstances

 the definition of a word in the act may be too broad to apply to the particular situation before the courts.

(The question asks for discussion so dot points should not be used.)

See pages 219-220 of Justice & Outcomes 11 th edition for more information.

The Marriage Act requires a celebrant to state that marriage is the union of a man and woman to the exclusion of all others, voluntarily entered into for life. The act does not clearly state that this is the definition of marriage. The courts later defined marriage using these words in Hyde v. Hyde and

Woodmansee (1866). The Marriage Act does not define the words 'man' and 'woman'. The meaning of these words was very clear at the time the Marriage Act was passed, but over time transsexuals have placed other meanings on these words. The meaning of these words and the meaning of marriage was clarified in Corbett v. Corbett in 1970, but attitudes in society have changed considerably since that time. The Marriage Act has not kept up with these changes in attitudes and it is therefore up to the courts to interpret the words in today's meaning in the interests of fairness for the parties concerned. The case of Kevin and Jennifer has now created a further precedent to be read in conjunction with the Marriage Act to form the law for people in the future.

5 marks)

Discuss the effect that the statutory interpretation in this case may have on future cases. (3


This case will be influential on future cases because it has decided an issue that is very likely to come up again and again in the future as attitudes change towards same-sex marriages and marriages between people who have changed sex. As the case was decided by the Full Court of the

Family Court, it is a superior court, so the decision created a binding precedent for courts lower in the hierarchy to follow.


6 Evaluate the strengths and weaknesses of law-making through courts. (8 marks)


Judges are experts in the field of law and its applications, so they are in a good position to make laws, as they deal with cases continuously. Also, as judges are appointed, rather than being elected, they are not subject to the whims of the electorate. Thus, judges can make laws that are necessary, rather than have to worry about making popular laws in order to be re-elected. However, as unelected law-makers, judges are not democratic, and therefore they may not necessarily be reflecting current views of the community in their law-making.



Courts are able to fill in the gaps in the law in areas that have not been considered by parliament, and so are able to develop areas of law. Further, through the interpretation of statutes, courts are able to give meaning to the laws made by parliament. These points mean that the courts are able to deliver a more just result to the parties in a case, and create just laws. However, such law-making relies on having progressive judges, who are willing to engage in law-making. Also, parliament is the sovereign law-maker, and can abrogate or override court-made law at any time, as long as they have the legislative power to do so.



7 Discuss the relationship between courts and parliament in law-making. (6 marks)


 parliament passes legislation that establishes courts, and determines their structure and jurisdiction

 courts apply legislation to the cases before them and uphold and enforce the legislation

 courts may interpret the meaning of words within the legislation, in order to give them meaning to apply to the case before the court








Case study – Wei TanG – madam or slave owner (Page 238)

1 What was Ms Tang initially convicted of and what was her sentence? (1 mark)

Ms Wei Tang was initially convicted of possessing and utilising a salve in 2006. She was sentenced to

10 years imprisonment on five charges of possessing and five charges of utilising a slave contrary to

S270.3(1)(a) of the Commonwealth Criminal Code Act. She was to serve a minimum of six years.

2 Who appealed this decision? (1 mark)

Ms Wei Tang appealed against the conviction to the Victorian Court of Appeal in 2007. Later the federal prosecutor appealed against the decision of the Court of Appeal and Ms Tang cross-appealed to the High Court asking for an acquittal.

3 What was the decision of the Court of Appeal and the reason for the decision? (2 marks)

The Court of Appeal overturned her conviction and ordered a new trial. She was released on bail.

The Court of Appeal found that the trial judge had not directed the jury about the necessity of proving intention to commit the offence of possessing and utilising slaves.

4 Identify an example of a decision being reversed in this case. Why did the High Court reverse the decision? (2 marks)

The High Court reversed the decision of the Court of Appeal and overturned the order for a new trial. The reason for this was that the Court of Appeal was wrong in its contention that it was

5 necessary to show intention to possess and utilise slaves. According to Justice Hayne of the High

Court, when considering the definition of slavery, there are two interlinked questions. First, did the accused possess, or exercise some other power attaching to the right of ownership over, the complainant and second, was the complainant a slave.

To what extent are judges able to make law? Discuss. (2 marks)

The courts are able to make law by creating precedents that are followed in the future by courts lower in the same hierarchy. These precedents are binding, but can be distinguished by a future court if it can be shown that the material facts are different. The decision can also be overruled or reversed by a future court higher in the same hierarchy, although the High Court can overrule its decisions.

Judges are restricted in their law-making because they cannot make law unless a particular legal issue arises and is brought before the courts. This is expensive and time-consuming for the person bringing the case.

Parliaments can also overrule court decisions and abrogate (cancel) any precedent created, although parliaments cannot overrule High Court decisions relating to the Constitution.

6 Explain the doctrine of precedent. (4 marks)



Precedent refers to the decisions of courts that must be followed by other courts. Note that it is the reason for the decision that is to be followed, not the outcome of the case. Precedent can be either binding or persuasive. Binding precedent must be followed by courts lower in the court hierarchy than the one in which the precedent was set. It is the ratio decidendi that is the binding part of the precedent. Persuasive precedent is precedent that a court is not bound to follow, but it still may influence a decision. Persuasive precedent includes decisions made by courts lower in the court hierarchy, decisions made by courts in other hierarchies, and obiter dictum statements.

In the Wei Tang case the court had to decide if the actions of Ms Tang fitted the definition of slavery as provided in the Criminal Code Act. The word slavery was interpreted and it was decided that Ms Tang’s actions did constitute slavery. The reason for the decision of the High Court would be followed in future cases in the same hierarchy.

See pages 193-205 of Justice & Outcomes 11 th edition for more information on the doctrine of precedent.

7 Identify two reasons for statutory interpretation. (2 marks)

Reasons could include:



The act may be silent on an issue. For example, the Control of Weapons Act did not provide a definition of ‘weapon’, so the court had to give meaning to this word for the case.






The meaning of words may be ambiguous. Words and phrases in legislation attempt to cover a broad range of issues, so it may not be clear what the exact meaning is to be used to cover the

4 specific situations that arise in cases.


Analyse the effect of statutory interpretation. (4 marks)


Statutory interpretation forms a precedent which is then read together as part of the law with the act of parliament. The precedent created by the courts can be extended or changed in higher courts. A court can interpret a previous interpretation of a word in an act more narrowly, as in Deing v. Tarola in the interpretation of a weapon. A court can also interpret an act more broadly as in the Lange case where the it was decided by the High Court that the Constitution implied the freedom of political communication at any time, not just leading up to an election, as was first decided.


5 A newspaper article once stated that courts are essential to the law-making process in

Australia. Critically evaluate three strengths of courts as law-makers. (8 marks)




Judges are experts in the field of law and its applications, so they are in a good position to make laws, as they deal with cases continuously. Also, as judges are appointed, rather than being elected, they are not subject to the whims of the electorate. Thus, judges can make laws that are necessary, rather than have to worry about making popular laws in order to be re-elected. However, as unelected law-makers, judges are not democratic, and therefore they may not necessarily reflect current views of the community in their law-making.

Courts are able to fill in the gaps in the law in areas that have not been considered by parliament, and so are able to develop areas of law. Further, through the interpretation of statutes courts are able to give meaning to the laws made by parliament. These points mean that the courts are able to deliver a more just result to the parties in a case, and create just laws. However, such law-making relies on having progressive judges, who are willing to engage in law-making. Also, parliament is the sovereign law-maker, and can abrogate or override court-made law at any time, as long as they have the legislative power to do so.



6 Explain the relationship between courts and parliament in law-making. (4 marks)


 parliament passes legislation that establishes courts, and determines their structure and



 jurisdiction courts apply legislation to the cases before them and uphold and enforce the legislation courts may interpret the meaning of words within the legislation, in order to give them meaning to apply to the case before the court








Structured questions – The role of courts in law-making (Page 241)

1 mark)

Why is the existence of a court hierarchy a necessary part of law-making through courts? (1

A court hierarchy allows the doctrine of precedent to operate. Decisions of courts higher in the court hierarchy are binding on those courts below them in the hierarchy, thereby promoting consistency and predictability in the way in which courts resolve questions of law in a case. If there was no hierarchy then there would not be lower courts on which precedent would be binding.

2 Outline two ways in which a judge’s ability to make law can be restricted. (4 marks)

A judge’s ability to make law can be restricted by a binding precedent. If there is a binding precedent that has been created in a higher court in the same hierarchy, a lower court must follow the binding decision if the material facts of the two cases are similar.

A judge’s ability to make law is also restricted by the fact that precedents cannot be created by courts if a relevant case is not brought before the courts by someone who has been affected by what can be seen as an unjust law (who has standing).

3 Define the following terms:



Ratio decidendi – this is the reason given by a judge for the decision in a case. It forms the binding part of the decision.



Obiter dictum – these are comments said in passing by a judge. These remarks are not binding.



Stare decisis – means to stand by what has been decided. Stare decisis is the essence of the doctrine of precedent.



Persuasive precedent – a decision made by a court that does not have to be followed by another court examining the precedent; however, it can be highly persuasive.

4 Explain the difference between overruling a decision and reversing a decision. (2 marks)

When a decision is made in a case, the reason for that decision forms a precedent. If that same case is then heard on appeal in a higher, more superior court, the court may reverse, or change, the decision made in the lower court. In overruling, the court chooses not to follow the decision made in a lower court in a previous case, thereby changing the precedent. So the key difference is that reversing involves the same case being heard in a higher court, and the previous decision overturned, while overruling a decision refers to changing the precedent established by a lower court in a different case.

5 What is meant if a case is distinguished from a previous case? What facts are considered in this process? (1 mark)

When ruling on a case before them, a judge may decide that the material facts in the case are different from the material facts of the case in which the precedent was set. Thus, they can



distinguish the two cases from each other due to the different facts that affect the case, and therefore avoid following the precedent.

6 What is meant when a precedent is disapproved? (1 mark)

A precedent is disapproved when a different court in the same hierarchy, hearing a different case, looks back at a precedent and remarks that they do not agree with the decision that has been made in the precedent. If the second court is higher in the same court hierarchy than the first, then the second court may go on to overrule the previous decision or may decide to follow the first court for the sake of consistency and leave it to parliament to change the law. If it is not higher in the same court hierarchy it may be bound to follow the previous decision, even though it does not agree with it.

7 Explain why most law-making by courts is carried out by a court of appeal. (1 mark)

A precedent cannot be created in a court when a jury is present because the jury does not give a reason for its decision. For a precedent to be created, a reason for the decision (ratio decidendi) must be given. Therefore, particularly in criminal cases, precedents are usually created when a case has been taken to a higher court on appeal and the judge decides on the outcome of the case and gives a reason for the decision. Precedents can be created in courts of first instance in civil cases if there is no jury present.

8 Why is it necessary for the courts to interpret acts of parliament? (6 marks)

It is necessary to interpret some acts of parliament because they may be silent on an issue. For example, the Control of Weapons Act did not provide a definition of ‘weapon’, so the court had to give meaning to this word for the case.


The meaning of words may be ambiguous. Words and phrases in legislation attempt to cover a broad range of issues, so it may not be clear what the exact meaning is to be used to cover the specific situations that arise in cases.

Problems may occur when drafting a bill. For example

 mistakes can occur during the drafting of an act — parliamentary counsel may make mistakes when drafting a bill. S51 of the Crimes Act 1958 (Vic.) deals with the sexual exploitation of people with impaired mental functioning. In the original act a witness was required to support the victim’s evidence before the offender could be prosecuted. As it was unlikely that there was a witness to such acts, no prosecutions were brought under this part of the act. This was clearly an oversight and the act has now been amended. A witness is no longer required

• the act might not have taken into account future circumstances — for example, the

Commonwealth of Australia Constitution Act 1900 (UK) gives the Commonwealth Parliament the power to legislate over ‘the naval and military defence of the Commonwealth and of the several

States and the control of the forces to execute and maintain the laws of the Commonwealth’

(S51 VI). This section does not refer to the air force. At the time the act was passed, an air force was not envisaged



• the intention of the act might not be clearly expressed — this can lead to confusion about how to interpret the act

• there might be inconsistent use of the same word in the act (giving it different meanings) — this could occur within the act itself or could be caused by an amendment that is not consistent with the original act in its use of a particular word

• an act may not include new types of technology — for example, an act referring to CDs and

DVDs may not include MP4 players

• parliamentary counsel, when drafting the legislation, may have used incorrect technical terms

• there may be inconsistencies with other statutes

• a word in an act may not be defined in the act

• the definition of a word might be too broad in an act.

Problems also occur when applying an act to a particular court case. For example:

• most legislation is drafted in general terms, but has to be applied to specific circumstances

• the act may have become out of date and may need to be revised to keep up with changes in society

• the meaning of the words may be ambiguous — the words and phrases used in an act attempt to cover a broad range of issues. As a result, the meaning of some of the words might be ambiguous. It is therefore necessary for the courts to interpret the words or phrases in order to decide on their meaning according to the intention of the act. In the case of Davies v. Waldron

(1989), the court was asked to interpret the phrase ‘start to drive’ found in S48 and S49 of the

Road Safety Act 1986 (Vic.). Did the accused who was sitting in the car (with blood alcohol level of over .05), while the engine was running, start to drive the car? The Supreme Court found that the accused was in charge of the motor vehicle and did start to drive the motor vehicle within the meaning of the Road Safety Act. See page ??? for more details about this case

• the act might be silent on an issue and the courts may need to fill gaps in the legislation — an act tries to cover all situations that might arise in relation to the issues covered in the act. This may not be possible as some situations may arise that were not foreseen, or gaps may have been left in legislation. An act may therefore be silent on an issue that comes before the courts. For example, does the word ‘man’ or the word ‘woman’ in the Marriage (Amendment) Act 2004

(Cth) include a person who has had a sex-change operation and has become a man or a woman

9

• the meaning of words can change over time — the legal meaning of the term ‘de facto relationship’ was a man and a woman living in a domestic relationship. The definition of a de facto relationship is now a couple living in a domestic relationship, regardless of gender.

(dot points should not be used in your answer to this question)

What are some of the disadvantages of law-making through the courts? (6 marks)

Weaknesses of law-making through the courts

restricted to cases before the courts

Courts are restricted by the fact that they can only make laws relating to points of law brought up in the cases that come before them. People may not be aware of their right to take a matter to court to resolve it in a fair way. costly changes can be slow

Some people may be aware of their rights, but unable to afford the cost of taking a matter to court to rectify an unjust situation.

The courts can change the law immediately when a case is before them, but changes in a particular area of law through the courts can be slow to develop, such as the law of negligence, which continues to broaden its scope. Changing the law depends on litigants (a person who takes a matter to court is a litigant) taking a relevant case to court.



difficulty of finding precedents ex post facto bound by previous decisions courts are not an elected body and therefore do not represent the wishes of the people courts are not able to investigate an area of law as a whole courts cannot seek public opinion about changes in the law reluctance of courts to change the law

(conservatism)

The process of precedents can be an inefficient means of making and changing the law, because finding the relevant precedents can be time-consuming.

Court decisions are made retrospectively (ex post facto — after the fact). That is, an action takes place, and the courts make the decision on whether it is against the law after the action has taken place. For example, in the case of

Grant v. Australian Knitting Mills, the courts decided that there was a law of negligence after Australian Knitting Mills had negligently left the chemical in the underpants.

A court’s ability to change the law may be restricted by the doctrine of precedent. It may be bound by the decisions of an earlier case from a higher court in the hierarchy that may not be able to be distinguished. However, the

High Court is not bound by its own decisions and is therefore able to change the law when a case comes before it.

Members of parliament are elected by the people to make laws on behalf of the people. Judges are not elected. At times the courts are called upon to make laws when deciding on a new issue or interpreting acts of parliament. This lawmaking is restricted to the specific area of law that is in the case before them, but the laws set down by courts when creating a precedent form part of the law as a whole to be followed in the future.

Parliaments, through parliamentary committees, are able to investigate a whole area of law and decide what changes in the law are required. Courts on the other hand are only able to deal with the small area of law brought before them, although courts can also look at extrinsic material.

Parliamentary committees can use public forums and public submissions to find out what changes in the law the people would like to see occur. Courts have no opportunity to investigate people’s views about a precedent they are going to set, although judges may consider what they believe to be popular opinion when reaching a decision.

In the interests of certainty and consistency, judges tend to be conservative in their attitude towards changing the law through the courts. Therefore they often elect to follow previous decisions, which in some instances can lead to injustices. Also, courts will generally see parliament as the law-making body and view their own role more in terms of interpreting past decisions. In most instances case law complements statute law, although sometimes judges apply an outdated precedent in a case that causes community concern. In such instances parliament can pass a statute that abrogates the court decision (that is, parliament cancels it).

10 Using relevant cases, explore the relationships between courts and parliament in lawmaking. (6 marks)

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 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.

Parliaments pass acts to establish courts. For a court to exist there must be an act of parliament that establishes the court, and sets out its jurisdiction. For example, the Victorian

Parliament passed the Supreme Court Act 1986 (Vic.) to establish the Supreme Court. Likewise the

Magistrates’ Court Act was passed in 1989. Both the Supreme Court Act and the Magistrates’ Court

Act replaced previous acts that originally established these courts.

Courts apply and interpret the law. For legislation to be effective, the courts must apply the statutes, or delegated legislation, to the cases before them. To do this, it is sometimes necessary for a court to interpret the meaning of the words in an act or piece of delegated legislation. For example in the Deing v. Tarola case the court was required to interpret the word ‘weapon’.

Decisions about the meaning of the words in statutes form precedents that become part of the law to be followed in the future. For example, the interpretation of the words ‘external affairs by the High Court in the Tasmanian Dam case set a precedent to be followed in the future.

The High Court has played an important role in interpreting the words in the Commonwealth

of Australia Constitution Act 1900 (UK). In this way the High Court has helped to define the balance of power between the Commonwealth Parliament and the state parliaments. The Tasmanian Dam case gave more power to the Commonwealth Parliament by its interpretation of ‘external affairs’ to mean an area that was covered by an international treaty.

For the courts to be able to interpret the meaning of the words of an act of parliament, an individual or group must take the matter to a court. This can be an expensive exercise. To help provide greater access to the courts, parliaments have passed laws setting up bodies that provide legal assistance, for example, the Legal Aid Act 1978 (Vic.) established Victoria Legal Aid for this purpose.

Parliament can change or confirm law made by courts. Courts depend on parliament to make the bulk of the law. Parliament depends on courts to apply the law made by parliament and to establish new law on situations that have arisen for the first time.

Parliament is the supreme law-making body within its jurisdiction and can make law that confirms a precedent set in a court – by passing an act of parliament that reinforces the principles established by the court.

Parliament can also change the law to override a decision made through the courts (other than High Court interpretations of the Constitution). On occasions, the courts interpret the meaning of the words in a statute in a way that was not the intention of parliament, or in a way that does not reflect the current meaning of the act.

Courts also sometimes interpret the common law (made up of precedents set in the past) in a conservative way that no longer reflects current values in the community.

Courts can influence changes in the law by parliament through their comments made during court cases. Parliament can also be influenced to change the law if a court is bound by previous precedent and makes a decision that creates an injustice.

A progressive decision reached by the courts could alert the parliament to the need for a major change in the law. Parliament, therefore, may be influenced because courts may be too conservative. Courts may be reluctant to change the law because there is a need for the type of investigation that parliament can carry out on a whole area of law, but statements made by a judge

(obiter dictum) within a court decision may influence parliament to change the law. In the Trigwell case, State Government Insurance Commission v. Trigwell & Ors (1978) 142 CLR 617, the court was reluctant to set a new precedent, but stated that the law should be changed by parliament.

Courts decisions may highlight problems and lead to public outcry. In the case of Knight v.

Anderson (2007) VSC 278, the decision of the court to allow Julian Knight (Hoddle Street killer who



murdered seven people on August 9, 1987) to seek an injunction that would allow him to write to one of his victims led people to complain in the media about the inadequacy of the law in such situations; this led to a change in the law. The Victorian Parliament passed the Justice Legislation

Amendment Act 2007, giving prison governors the power to intercept or censor letters sent by prisoners to any person if they believe that the letter contains material that may be distressing or traumatic. It also introduced a new offence that prohibits prisoners sending, or attempting to send, a letter to victims or their families that the prisoner knows or ought reasonably to have known would cause distress and trauma.

Creativity by courts may alert the parliament to an area of law where new laws made by parliament are needed. The Mabo decision was an example of the High Court breaking new ground.

According to common law, Australia was an empty land when it was taken over by the British. This is the concept of terra nullius. In the Mabo case, the High Court overturned the concept of terra nullius and stated that Mabo and the Meriam people had the right to their land under native title. (See below for more details on this case.)

Lenient sentences can lead to changes in the law. There was public outcry after a lenient sentence of 10 years, with a minimum of seven years, was handed down to Thomas Towle for six charges for dangerous driving causing death and four charges of dangerous driving causing injury.

Towle killed six teenagers in Mildura who were standing at the side of the road and injured four others. As a result of this case, the Victorian Parliament passed the Crimes Amendment (Child

Homicide) Act 2008 (Vic.). This act increased the maximum sentence for dangerous driving causing death from five years to 10.



Suggested solutions to questions in Justice & Outcomes 11th edition

Suggested solutions to questions in Justice & Outcomes

11

edition

CHAPTER 1

CHAPTER 2

CHAPTER 3

CHAPTER 4

CHAPTER 5

CHAPTER 1

Unit 3 – Outcome 1

Folio exercise (Page 33)

Unit 3 – Outcome 1

Case study – Balance of power (Page 34)

CHAPTER 2

Unit 3 – Outcome 1

Folio exercise – Save Our Streets (Page 81)

Unit 3 – Outcome 1

Folio exercise – Jury directions (Page 82)

Unit 3 – Outcome 1

Case study – Victorian Law Reform Commission (Page 83)

Unit 3 – Outcome 1

Case study – Identity crime (Page 83)

Unit 3 – Outcome 1

Essay – changing the law (Page 84)

CHAPTER 3

Unit 3 – Outcome 2

Structured questions – The Constitution and the High Court

(Page 128)

Unit 3 – Outcome 2

Report – Changing the division of power (Page 128)

CHAPTER 4

Unit 3 – Outcome 2

Structured questions – Protection of rights (Page 187)

CHAPTER 5

Unit 3 – Outcome 3

Case study – Deing v. Tarola (Page 236)

Unit 3 – Outcome 3

Case study – Kevin and Jennifer’s marriage (Page 236)

Unit 3 – Outcome 3

Case study – Wei TanG – madam or slave owner (Page 238)

Unit 3 – Outcome 3

Structured questions – The role of courts in law-making (Page 241)

Weaknesses of law-making through the courts

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**Case study – Deing v. Tarola (Page 236)**