THE CPAP STUDY GUIDE TO VCE LEGAL STUDIES - … Preview_copy.pdfLEGAL STUDIES 1st edition (2012) ... Megan Blake (LLB.,B.A.(Melb) Dip.Ed. ... Reasons for interpretation of statutes

THE CPAP STUDY GUIDE TO VCE LEGAL STUDIES

1st edition (2012)

Megan Blake Ashley Evans

& Simon Phelan

ISBN: 978-1-921813-07-8

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NOT FOR PRINTING OR DISTRIBUTION

The CPAP Study Guide to VCE Legal Studies, 1stEdition (2012) by Megan Blake, Ashley Evans and Simon Phelan 2

ABOUT THE AUTHORS

Megan Blake (LLB.,B.A.(Melb) Dip.Ed.(Monash)) completed a law degree at the University of Melbourne and worked for a number of years with private law firms and large corporations. Since joining the teaching profession, Megan has been a teacher of VCE legal studies and has been actively involved in Legal Studies education. She had positions of responsibility with the VCAA, most recently as a member of the panel designing the current Legal Studies Study Design and she has had a number of years experience as a VCE Legal Studies examination assessor. Megan also has experience presenting student lectures and workshops and is a prolific writer of assessment materials, for both CPAP and other organisations. Megan is also the author of the VCE Legal Studies Updates published quarterly by CPAP. Ashley Evans (B.Comm., Dip. Ed. (Sec)) is currently an Assistant Principal at McKinnon Secondary College. He was on the VCAA panel that composed the current Legal Studies Study Design and has been actively involved in teaching Legal Studies and presenting to Legal Studies teachers at ComVIEW, the VCTA's conference for commerce teachers. Simon Phelan (B.Ed., B.Bus., Dip.Int.Ed) is currently Head of Senior School and a senior Commerce teacher at Rosehill Secondary College. He has been actively involved in teaching and presenting revision lectures in Legal Studies, contributing to the VCTA’s journal (Compak) and the assessment of Legal Studies examinations for the VCAA. COPYRIGHT AND DISCLAIMER

Please note that this publication is protected by copyright laws and no part of the publication can be reproduced without the express permission of CPAP.

The publication is in no way connected to the VCAA. Readers should be aware that the advice provided throughout the publication is the advice of the authors alone, and not the VCAA. Cover photo courtesy of digitalart. Other images courtesy of Australian Government, digitalart, sakhorn38 (jail bars), renjith Krishnan (media), taoty (ballot box); Stuart Miles (Legal Advice), David Castillo Dominici (3d judge)

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TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................................................................... 3 The Unit 3 Study Design ............................................................................................................................................... 6

Law-making ............................................................................................................................................................. 6 AREA OF STUDY 1 ................................................................................................................................................ 6 AREA OF STUDY 2 ................................................................................................................................................ 7 AREA OF STUDY 3 ................................................................................................................................................ 8

An introduction to government In Australia .................................................................................................................... 9 The structure of the Victorian Parliament .................................................................................................................... 9 The structure of the Commonwealth Parliament ......................................................................................................... 10 How is the executive government formed? ................................................................................................................ 10

THE PRINCIPLES OF THE AUSTRALIAN PARLIAMENTARY SYSTEM .................................................................................. 13 Representative government ...................................................................................................................................... 13 Responsible government .......................................................................................................................................... 13 The separation of powers ......................................................................................................................................... 14

The make-up of parliament .......................................................................................................................................... 15 Structure of Parliament ............................................................................................................................................ 15 The roles of the Houses of Parliament ....................................................................................................................... 16

Victorian Parliament ............................................................................................................................................. 16 Commonwealth Parliament ................................................................................................................................... 17

The roles played by the Crown ................................................................................................................................. 19 Other roles of the Crown in the Australian parliamentary system ............................................................................. 19

CHANGE IN THE LAW .................................................................................................................................................. 20 Reasons why laws may need to change (including contemporary examples) ................................................................ 20

INFLUENCING A CHANGE IN THE LAW.......................................................................................................................... 22 The role of the Victorian Law Reform Commission (VLRC) ........................................................................................... 22

The process undertaken by the VLRC .................................................................................................................... 22 Other examples of the VLRC influencing changes to the law .................................................................................... 23

Individuals and groups influencing change in the law ................................................................................................. 24 Using petitions to influence change in the law ........................................................................................................ 24 Influencing change in the law through demonstrations ........................................................................................... 26 Using the media to influence change in the law ...................................................................................................... 27

THE PASSAGE OF A BILL THROUGH PARLIAMENT ......................................................................................................... 30 Supremacy of Parliament.......................................................................................................................................... 30 The legislative process for the progress of a bill through parliament – Commonwealth .................................................. 30 The legislative process for the progress of a bill through parliament – Victoria ............................................................. 32 Law-making: important terminology .......................................................................................................................... 32

THE EFFECTIVENESS OF PARLIAMENT AS A LAW-MAKER .............................................................................................. 34 UNIT 3 MINI EXAM NO 1 ...................................................................................................................................... 37

THE AUSTRALIAN CONSTITUTION ............................................................................................................................... 38 THE DIVISION OF LAW-MAKING POWERS ..................................................................................................................... 38 RESTRICTIONS ON LAW-MAKING POWER ..................................................................................................................... 40

Restrictions imposed by the Commonwealth Constitution on the law-making powers of the state parliaments ................ 40 Restrictions imposed by the Commonwealth Constitution on the law-making powers of the Commonwealth Parliament ... 41

CHANGING THE DIVISION OF LAW-MAKING POWER ..................................................................................................... 42 Changing the constitution by referendum .................................................................................................................. 42

The steps in the s 128 process .............................................................................................................................. 42 Factors affecting the likely success of referendums under Section 128 ..................................................................... 43 Referendums that changed the division of powers .................................................................................................. 44

HIGH COURT INTEPRETATION OF THE CONSTITUTION ................................................................................................ 46 The role of the High Court in interpreting the Commonwealth Constitution .................................................................. 46 High Court cases involving the interpretation of the Commonwealth Constitution.......................................................... 46

STATES REFERRING LAW-MAKING POWERS TO THE COMMONWEALTH ......................................................................... 49 ANALYSING THE METHODS OF ALTERING THE DIVISION OF POWERS ........................................................................... 50 CONSTITUTIONAL PROTECTION OF RIGHTS ................................................................................................................. 52

Defining human rights .............................................................................................................................................. 52

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The ways in which the Australian Constitution protects human rights .......................................................................... 52 Express rights ...................................................................................................................................................... 52 Implied rights ...................................................................................................................................................... 53 Structural protection of human rights .................................................................................................................... 55

Evaluating human rights protection ........................................................................................................................... 59 Comparing the protection of human rights across nations ........................................................................................... 60

Comparing Australia and the USA .......................................................................................................................... 60 Comparing Australia and Canada ........................................................................................................................... 61 Comparing Australia and New Zealand .................................................................................................................. 61 Comparing Australia and South Africa .................................................................................................................... 62 UNIT 3 MINI EXAM No 2 ...................................................................................................................................... 63

LAW-MAKING BY THE COURTS ..................................................................................................................................... 64 The ability of judges and courts to make law ............................................................................................................. 64

The doctrine of precedent .................................................................................................................................... 65 Key concepts in the operation of the doctrine of precedent ..................................................................................... 66 Precedents in action ............................................................................................................................................. 68

Is common law flexible? ........................................................................................................................................... 68 Departing from precedent .................................................................................................................................... 69 Limitations of precedent ....................................................................................................................................... 69 Examples of precedents in action .......................................................................................................................... 71

Doctrine of precedent case studies ............................................................................................................................ 73 STATUTORY INTERPRETATION .................................................................................................................................... 76

Reasons for interpretation of statutes by judges ........................................................................................................ 76 The effects of statutory interpretation by judges ........................................................................................................ 77 Statutory interpretation case study ........................................................................................................................... 77

THE EFFECTIVENESS OF COURTS AS LAW-MAKERS ....................................................................................................... 79 THE RELATIONSHIP BETWEEN COURTS AND PARLIAMENT IN LAW-MAKING .................................................................. 80

Relationship between courts and parliament case studies ........................................................................................... 80 UNIT 3 MINI EXAM No 3 ...................................................................................................................................... 83 UNIT 3 MINI EXAM No 1: SUGGESTED ANSWERs .................................................................................................. 84 UNIT 3 MINI EXAM No 2: SUGGESTED ANSWERs .................................................................................................. 86 UNIT 3 MINI EXAM No 3: SUGGESTED ANSWERs .................................................................................................. 91

The Unit 4 Study Design .............................................................................................................................................. 95 Resolution and justice .............................................................................................................................................. 95

AREA OF STUDY 1 ............................................................................................................................................... 95 AREA OF STUDY 2 ............................................................................................................................................... 96

RESOLUTION AND JUSTICE ......................................................................................................................................... 97 COURTS ..................................................................................................................................................................... 97

Court jurisdiction ..................................................................................................................................................... 97 A court hierarchy ..................................................................................................................................................... 99

Reasons for a court hierarchy ............................................................................................................................. 100 THE ROLE OF VCAT ................................................................................................................................................... 102

Tribunals ............................................................................................................................................................... 102 The Victorian Civil and Administrative Tribunal (‘VCAT’) ............................................................................................ 102

Structure of VCAT .............................................................................................................................................. 102 The dispute resolution process at VCAT ............................................................................................................... 103

DISPUTE RESOLUTION METHODS USED BY COURTS AND VCAT .................................................................................. 105 Use of methods by courts and VCAT ....................................................................................................................... 105 Strengths and weaknesses of dispute resolution methods ......................................................................................... 108

STRENGTHS AND WEAKNESSES OF COURTS AND VCAT AS VENUES ............................................................................. 111 UNIT 4: MINI EXAM NO 1 ................................................................................................................................... 115

RESOLUTION AND JUSTICE ....................................................................................................................................... 116 ELEMENTS OF AN EFFECTIVE LEGAL SYSTEM ............................................................................................................. 117

Entitlement to a fair and unbiased hearing .............................................................................................................. 117 Effective access to the legal system ........................................................................................................................ 118 A timely resolution of disputes ................................................................................................................................ 119

THE ADVERSARY SYSTEM .......................................................................................................................................... 120

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Features of the adversary system ........................................................................................................................... 120 Strengths and weaknesses of the adversary system of trial ....................................................................................... 121

The Inquisitorial System ............................................................................................................................................. 123 Reforms to the Adversary System ............................................................................................................................... 124 CRIMINAL PRE-TRIAL PROCEDURES ........................................................................................................................... 127

Criminal law .......................................................................................................................................................... 127 Pre-trial procedures ........................................................................................................................................... 128

CRIMINAL SANCTIONS .............................................................................................................................................. 131 Aims of criminal sanctions ...................................................................................................................................... 131 Types of criminal sanctions ..................................................................................................................................... 133

CIVIL PRE-TRIAL PROCEDURES .................................................................................................................................. 135 Civil law ................................................................................................................................................................ 135 Pre-trial procedures ............................................................................................................................................... 135

REMEDIES ................................................................................................................................................................ 140 General aims of civil remedies ................................................................................................................................ 140 Types of civil remedies ........................................................................................................................................... 141

THE JURY SYSTEM .................................................................................................................................................... 143 Role of the jury ..................................................................................................................................................... 143 Use of the jury ...................................................................................................................................................... 143 Jury verdicts .......................................................................................................................................................... 144 Empaneling a jury .................................................................................................................................................. 145

Selecting a jury pool .......................................................................................................................................... 145 Courtroom empanelment .................................................................................................................................... 146

Strengths and weaknesses of the jury system .......................................................................................................... 148 Reforms and alternatives to the jury system ............................................................................................................ 149

Reforms to the jury system ................................................................................................................................. 149 Alternatives to the jury system ............................................................................................................................ 150

PROBLEMS AND DIFFICULTIES FACED BY INDIVIDUALS IN USING THE LEGAL SYSTEM ................................................ 152 Entitlement to a fair and unbiased hearing .............................................................................................................. 154 Effective access to mechanisms for the resolution of disputes ................................................................................... 155 Timely resolution of disputes .................................................................................................................................. 156

RECENT CHANGES AND RECOMMENDATIONS FOR CHANGE IN THE LEGAL SYSTEM ...................................................... 157 Entitlement to a fair and unbiased hearing .............................................................................................................. 157

Recent changes ................................................................................................................................................. 157 Recommendations for future change ................................................................................................................... 158

Access to mechanisms for the resolution of disputes ................................................................................................ 159 Recent changes ................................................................................................................................................. 159 Recommendations for future change ................................................................................................................... 160

Timely resolution of disputes .................................................................................................................................. 160 Recent changes ................................................................................................................................................. 160 Recommendations for future change ................................................................................................................... 161 UNIT 4: MINI EXAM NO 2 ................................................................................................................................... 163

THE NOVEMBER EXAMINATION .................................................................................................................................. 164 UNIT 4: MINI EXAM NO 1 SUGGESTED ANSWERS ................................................................................................ 170 UNIT 4: MINI EXAM NO 2 SUGGESTED ANSWERS ................................................................................................ 172 Bonus Practice examination ................................................................................................................................ 178

INDEX OF KEY TERMS ............................................................................................................................................... 180

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THE UNIT 3 STUDY DESIGN

Law-making In this unit students develop an understanding of the institutions that determine our laws, and their law-making powers and processes. They undertake an informed evaluation of the effectiveness of law-making bodies and examine the need for the law to keep up-to-date with changes in society. Students develop an appreciation of the complex nature of law-making by investigating the key features and operation of parliament, as well as a range of influences on law-making, with a focus on the role of the individual. Central to the investigation of law-making is the role played by the Commonwealth Constitution. Students develop an understanding of the importance of the Constitution in their lives and on society as a whole, and undertake a comparative analysis with another country. They learn of the importance of the role played by the High Court of Australia in interpreting and enforcing the Constitution, and ensuring that parliaments do not act outside their areas of power nor infringe protected rights. Students investigate the nature and importance of courts as law-makers and undertake an evaluation of their effectiveness as law-making bodies. They also investigate the relationships that exist between parliaments and courts. Throughout this unit, students examine relevant cases to support their learning and apply legal principles to these cases.

AREA OF STUDY 1 Parliament and the citizen Parliaments are the supreme law-making bodies in the Australian legal system; their role is to make laws that reflect the views and values of Australian society. This area of study focuses on the principles that underpin the Australian parliamentary system as well as the role of parliament as a law-making body. Students explore the factors that may influence parliament in bringing about changes in the law by examining the role that individuals and groups may play. Through an investigation of the structure and role of parliament, and the processes it follows in passing legislation, students evaluate the overall effectiveness of parliament as a law-making body. Outcome 1 On completion of this unit the student should be able to explain the structure and role of parliament, including its processes and effectiveness as a law-making body, describe why legal change is needed, and the means by which such change can be influenced. To achieve this outcome the student will draw on key knowledge and key skills outlined in Area of Study 1. Key knowledge This knowledge includes: Principles of the Australian parliamentary system: representative government, responsible government, and the

separation of powers. The structure of the Victorian Parliament and the Commonwealth Parliament and the roles played by the Crown and the

Houses of Parliament in law-making. The reasons why laws may need to change. The role of the Victorian Law Reform Commission. The means by which individuals and groups influence legislative change, including petitions, demonstrations and use of

the media. The legislative process for the progress of a bill through parliament. Strengths and weaknesses of parliament as a law-making body.

Key skills These skills include the ability to:

Exam Tip: Some of the AOS1 content was new on the Study Design in 2011. The means by which individuals and groups can influence parliament was not new, but the connected Key Skill – to evaluate their effectiveness – was

new.

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Define key legal terminology and use it appropriately. Discuss, interpret and analyse legal information and data. Explain the principles and structures of the Australian parliamentary system. Use contemporary examples to explain the influences on legislative change. Evaluate the effectiveness of methods used by individuals and groups to influence change in the law. Critically evaluate the law-making processes of parliament.

AREA OF STUDY 2 The Constitution and the protection of rights In this area of study students investigate the role of the Commonwealth Constitution in establishing and restricting the law-making powers of state and Commonwealth parliaments. Students examine how these law-making powers can be changed and analyse the impact of these methods. They investigate the role of the High Court with respect to law-making powers and the protection of rights contained in the Constitution. Students explore the means by which the Commonwealth Constitution protects rights in Australia and develop an awareness of the rights and responsibilities of Australian citizens. They engage in a comparison of the constitutional approach used to protect their rights in Australia with that of another country, raising their awareness of an alternative model for the protection of rights. Outcome 2 On completion of this unit the student should be able to explain the role of the Commonwealth Constitution in defining law-making powers within a federal structure, analyse the means by which law-making powers may change, and evaluate the effectiveness of the Commonwealth Constitution in protecting human rights. To achieve this outcome the student will draw on key knowledge and key skills outlined in Area of Study 2. Key knowledge This knowledge includes: The division of law-making power between state and Commonwealth parliaments under the Commonwealth

Constitution, including specific (concurrent and exclusive) and residual powers, and the impact of Section 109. Restrictions imposed by the Commonwealth Constitution on the law-making powers of the state and Commonwealth

parliaments. The process of change by referendum under Section 128 of the Commonwealth Constitution and factors affecting its

likely success. The way in which one successful referendum changed the division of law-making powers. The role of the High Court in interpreting the Commonwealth Constitution. The significance of two High Court cases involving the interpretation of the Commonwealth Constitution in terms of their

impact on the law-making power of the state and Commonwealth parliaments. The capacity of the states to refer law-making power to the Commonwealth Parliament. The means by which the Commonwealth Constitution protects rights, including structural protections, express rights,

and implied rights. The significance of one High Court case relating to the constitutional protection of rights in Australia. Australia’s constitutional approach to the protection of rights and the approach adopted in one of the following

countries: Canada, New Zealand, South Africa, or the United States of America.

Exam Tip: Unless it says otherwise, all the key skills relate to all the key content. For example, the ability to use key legal terminology appropriately has to be done in all the parliamentary principles, the reasons why law might need to change, the influences on parliament, the passage of a bill through parliament and the evaluation of

parliament. The task word “discuss” in dot point #2 can also be expected with any piece of content.

Exam Tip: Some of the AOS2 content was new on the Study Design in 2011. The referral of powers was new, as was factors affecting the likely success of referenda. ‘Structural protections’ was new, as was the significance of one High Court rights case. It is important to keep an eye on new content, especially since there are fewer past exam

questions and assessor reports on the topics to learn from.

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Key skills These skills include the ability to: Define key legal terminology and use it appropriately. Discuss, interpret and analyse legal information and data. Apply legal principles to relevant cases and issues. Explain the role of the Commonwealth Constitution with respect to law-making powers and the protection of rights. Identify the types of law-making powers. Explain the methods and processes of changing constitutional power. Analyse the impact of referendums, High Court interpretation of the Constitution, and the referral of powers on the

division of law-making powers. Evaluate the means by which rights of Australians are protected by the Commonwealth Constitution, and the extent of

this protection. Compare the approach used to protect rights in a selected country with the approach used in Australia.

AREA OF STUDY 3 Role of the courts in law-making In this area of study students develop an understanding of the role that courts play in developing the law. Students investigate the doctrine of precedent and statutory interpretation, and consider their operation and effect. They evaluate the effectiveness of courts as a law-making body. Using relevant cases, students explore the relationships between courts and parliament in law-making. Outcome 3 On completion of this unit the student should be able to describe the role and operation of courts in law-making, evaluate their effectiveness as law-making bodies and discuss their relationship with parliament. To achieve this outcome the student will draw on key knowledge and key skills outlined in Area of Study 3. Key knowledge This knowledge includes: • The ability of judges and courts to make law. • The operation of the doctrine of precedent. • Reasons for interpretation of statutes by judges. • Effects of statutory interpretation by judges. • Strengths and weaknesses of law-making through the courts. • The relationship between courts and parliament in law-making.

Key skills These skills include the ability to: • Define key legal terminology and use it appropriately. • Discuss, interpret and analyse legal information. • Apply legal principles to relevant cases and issues. • Describe the nature, importance and operation of courts as law-makers. • Analyse the impact of courts in law-making. • Critically evaluate the law-making processes of courts. • Discuss the relationships between law-making bodies.

Exam Tip: Students should consider how the strengths and weaknesses of courts as law‐makers in this topic compare with the strengths and weaknesses of parliament in AOS1. The VCAA can, and does, combine content from different AOS in their questions, so the Study Design should be read as one document – not five completely

independent topics.

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AN INTRODUCTION TO GOVERNMENT IN AUSTRALIA Australians are privileged to live in a society in which we participate in how our community is governed: this is the meaning of the word ‘democracy’ (government by the people). Our system of government includes multiple layers, with elected parliaments making laws at both national and state levels. The Commonwealth Parliament makes laws for all of Australia, whereas the Victorian Parliament makes laws that apply just in Victoria. (There also exists another level of government – local councils – however these are not explored in Unit 3 Legal Studies). Our legal system also includes the Queen as our head of state – she is not only the Queen of England, but also the Queen of Australia. A ‘parliament’ is an elected groups of individuals (plus a representative of the Queen), and its main function is to make the laws that govern our society. There are many laws made by the Victorian and Commonwealth parliaments that govern all facets of our lives – from how much tax we pay out of our income, to what we can do when driving a car; from what you can do if a person attacks your reputation unfairly, to what you are and are not allowed to do online. In addition to parliaments, our system of government also includes government departments at the national and state levels. These departments perform important functions, such as:

The Department of Education and Early Childhood Development runs public schools in Victoria; The Department of Defence trains and provides resources for our armed forces; and The Department of Immigration and Citizenship coordinates the migration of families and skilled workers to

Australia. In Australia’s federal system, different levels of government have different responsibilities. For instance, the Commonwealth government is concerned largely with issues of national importance, such as immigration and deploying the armed forces. The Victorian government, by comparison, is concerned with issues specific to those living in Victoria such as road rules and managing the police force. Despite these differences, there are many similarities in how the Victorian and Commonwealth governments operate. In addition to parliaments and government departments, our system of government also includes the courts. Their role is to resolve disputes that arise in society and (where necessary) impose punishments on wrongdoers and compensate those who suffer injury.

The structure of the Victorian Parliament The Victorian Parliament is bicameral. This means it has two houses – two groups of democratically-elected individuals. New bills (a ‘bill’ is a proposed law) must pass through both houses of parliament before they become a law we must follow.

The lower house in the Victorian Parliament is called the Legislative Assembly. Victoria is divided into 88 districts, each of which elects one representative to sit in the Legislative Assembly. Each district includes approximately 40,000 voters. The upper house of the Victorian Parliament is called the Legislative Council. It consists of 40 elected representatives. Rather than each member representing only one district (40,000 people) like they do in the lower house, each member of the Legislative Council represents the interests of the whole of Victoria (over 5.5m people).

Elections for the lower and upper houses of the Victorian Parliament are conducted every 4 years, on the last Saturday in November. New bills must pass through both houses of parliament before they become law. Whilst new bills can be introduced in either house, most bills are introduced in the Legislative Assembly, where they are debated, passed and then sent to the Legislative Council to be debated and passed a second time. The Victorian Parliament also includes a representative of the Queen, who is known as the Governor of Victoria. The Governor must give their assent to all bills before they can become law, but they will only do this after the bill has been passed by both houses of parliament.

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The structure of the Commonwealth Parliament The Commonwealth Parliament is also bicameral. The lower house of the Commonwealth Parliament is called the House of Representatives. It includes 150 members, each of whom represents a division of approximately 95,000 voters. Members of the House of Representatives are elected every three years (although the precise amount of time between each election can vary slightly). The Prime Minister recommends to the Governor-General when an election should be held, but the Governor-General can decide whether to accept or reject this advice. An electoral division is sometimes referred to as an ‘electorate’ or a ‘seat’. For example, Julia Gillard is the democratically-elected representative for the division of Lalor (which is in Melbourne’s west). Likewise, Tony Abbott is the elected representative for the seat of Warringah (which is in Sydney’s northern suburbs). The upper house of the Commonwealth Parliament is called the Senate. There are 76 Senators, each of whom has the task of representing their entire state:

12 Senators are elected from each of the six states; and Two Senators are elected from the mainland territories – the

Australian Capital Territory and the Northern Territory. State Senators each have a term of 6 years, whereas Senators from the ACT and the NT are elected for 3-year terms only. New bills must pass through both houses of parliament before they become law. Whilst almost all new bills can be introduced in either house, most bills are introduced in the House of Representatives before being sent to the Senate to be debated and passed a second time. The Commonwealth Parliament also includes a representative of the Queen – the Governor-General. The Governor-General must also pass new bills before they can become law.

How is the executive government formed? In both the Victorian and Commonwealth Parliaments, the political party or coalition of parties that controls the majority of seats in the lower house will form the executive government: we call this the ‘Government’, with an upper-case ‘G’. A ‘coalition’ exists when two or more political parties join to contest an election and (if successful) form Government together. In Australian politics, a reference to ‘the coalition’ refers to the Liberal Party and the National Party contesting elections and governing together. Most members of parliament belong to a political party: one of the two major parties (Labor and Liberal), or a minor party (such as the Greens). It is not necessary to belong to a party in order to be elected to parliament, but it does help. Some members of parliament are called ‘independents’, meaning they do not belong to a party – but this means they have less assistance with election funding, and the public may not vote for them if they don’t know what the independent stands for personally. Example #1:

• At the 2010 Victorian election, 88 people were elected to the Legislative Assembly, each representing a division of around 40,000 voters.

• The Liberal/National Coalition won 45 of the 88 seats in the Legislative Assembly, so they formed Government. We call this the Baillieu Liberal Government. The Australian Labor Party (the ALP) won 43 out of 88 seats, so they became the Opposition.

Example #2:

• At the 2010 federal election, 150 people were elected to the House of Representatives, each representing a division of around 95,000 voters

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• The ALP and the Coalition each won 72 seats – less than half seats in the House of Representatives. The other seats were won by independents (those not members of political parties), a member of the WA National Party and a member of the Australian Greens.

• 3 independents (Rob Oakeshott, Tony Windsor and Andrew Wilkie) and the member of the Greens (Adam Bandt) chose to support the ALP and help them form Government. This means the ALP – despite not winning the majority of seats – has the support of the majority of seats in the lower house (76 out of 150). Thus, the ALP has formed Government in the Commonwealth Parliament. We call this the Gillard Labor Government.

What do we mean by ‘being in government’? The party in government controls majority of seats in the lower house of parliament – thus it will usually be able to introduce new laws and pass them through the lower house as it wishes. Bills must then also pass the upper house to become a law, which is where the Government may struggle to find majority support. In the Commonwealth Parliament, the leader of the party (or coalition of parties) with the majority of seats in the House of Representatives becomes the Prime Minister of

Australia. In Victoria, the leader of the party (or coalition of parties) with the majority of seats in the Legislative Assembly becomes the Premier of Victoria. In both the Victorian and Commonwealth Parliaments, some members of the government will be put in charge of running government departments. They are known as Ministers. Their area of responsibility is referred to as a ‘portfolio’. For example, as at February 2012 Chris Bowen is a member of the House of Representatives, elected by the district of McMahon (which is in NSW); He is a member of the ALP, which currently controls the majority of seats in the House of

Representatives – this means he is a member of the Government. In addition, as a senior member of the Government, he has been appointed as Minister for Immigration and Citizenship: this is the ‘portfolio’ he was given. He is therefore responsible for the actions of the Department of Immigration and Citizenship (and the hundreds of people working inside this government department). Ministers exercise power over how government departments conduct their activities. For example, the Department of Defence is responsible for ensuring the defence forces are trained correctly and have the right equipment – the Minister for Defence is in charge of this department and is responsible for how it performs its duties. Similarly, the Department of Immigration and Citizenship manages migration into Australia, grants visas to those who travel to Australia as tourists and awards citizenship to those who apply for it – the Minister for Immigration and Citizenship is in charge of this department and therefore responsible for how it performs these duties. Thus, being ‘in government’ grants that political party’s MPs a significant amount of power.

Exam Tip: This level of detail on the composition of the parliaments is not directly examinable, but it can help students understand the theory of how parliament works. Accurate real‐life examples are also an important part of

making an answer stand out above the average.

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Current composition of Australian parliaments (as at 1/1/2012) Commonwealth Parliament House of Representatives

(150 seats) Australian Labor Party: 72 seats Liberal/National Coalition: 71 seats Australian Greens: 1 seat WA Nationals: 1 seat Independents: 5 seats

Senate (76 seats)

Australian Labor Party: 31 seats Liberal/National Coalition: 34 seats Australian Greens: 9 seats Democratic Labor Party: 1 seat (no

connection to ALP) Independents: 1 seat

Victorian Parliament Legislative Assembly (88 seats)

Liberal/National Coalition: 45 seats Australian Labor Party: 43 seats

Legislative Council (40 seats)

Liberal/National Coalition: 21 seats Australian Labor Party: 16 seats Australian Greens: 3 seats

REVIEW/APPLICATION QUESTIONS 1 – An Introduction to Government in Australia 1. The Victorian and Commonwealth Parliaments are both bicameral. What does ‘bicameral’ mean? 2. Who or what is part of the structure of parliament in addition to these two houses? 3. For the Commonwealth Parliament, identify: a. The name of the lower house. b. The name of the upper house. c. The Queen’s representative. 4. For the Victorian Parliament, identify: a. The name of the lower house. b. The name of the upper house. c. The Queen’s representative. 5. Members of the House of Representatives are elected to represent their ‘divisions’, while Senators are

elected to represent their ‘states’. Outline what this means. 6. Distinguish between ‘parliament’ and ‘Government’. 7. Explain how a political party is able to become ‘Government’. 8. What kinds of responsibilities and power does being in government give to a party? 9. Using an example to illustrate your answer, explain the terms: a. Minister. b. Portfolio.

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THE PRINCIPLES OF THE AUSTRALIAN PARLIAMENTARY SYSTEM Our system of government follows certain ‘rules’ or ‘principles’ inherited from the Westminster system of government, as used in the United Kingdom. These principles are often referred to as the’ principles of the Australian parliamentary system’.

Representative government The millions of individuals living in Australian society cannot all directly participate in the way our government is run. Government functions such as training the police force, deploying our armed forces and introducing new laws are performed by those elected to do so on our behalf: instead of a direct democracy, we therefore have an indirect democracy. The government is indirectly by the people, because the people elect representatives to govern for them. The principle of representative government means that in performing such actions, the representatives will usually act in a way that is consistent with the values and beliefs of the majority of voters, because they must keep the majority in their electorates happy in order to keep their vote and win the next election. A failure to do so may result in a representative losing their seat. To ensure we achieve representative government, regular elections are conducted – every 4 years in Victoria and every 3 years at the Commonwealth level. This allows the voters to remove representatives who no longer represent their wishes about how society is governed – and if the party in government loses too many seats in the lower house, they will lose government as well and will become the opposition. In Unit 3 Area of Study 2 you will learn that the Australian Constitution clearly establishes the principle of representative government, by requiring that the House of Representatives and the Senate be ‘directly chosen by the people’. Furthermore, the High Court has stated that the Constitution’s principle of representative government requires voters and politicians to be able to freely discuss political issues. It is only with this free communication about political matters that voters can – in an informed manner – choose representatives who truly represent their values.

Responsible government As described above, ministers hold significant power. Because of this, and the possibility that they might one day abuse this power, they must be accountable for their actions.

According to the principle of responsible government, ministers are answerable – accountable – to parliament (and therefore to the voters) for their actions and the actions of their departments. This means ministers are responsible for any problems arising within their departments. Minsters are questioned in parliament by other members of parliament in a proceeding called ‘Question Time’, which is televised and reported in the news. Ministers are expected to act with integrity and honesty, or resign. If they mislead parliament or are unable to answer questions to a satisfactory standard, they may be stripped of their portfolio. The principle of responsible government in action – hypothetical examples:

1. Assume the Minister for Health is responsible for allocating funds to hospitals and deciding which hospitals and aged care centres will receive more funding for doctors and facilities, etc. Members of the Opposition will ask the Minister questions in parliament about how this money is allocated, to ensure it is allocated fairly amongst Australia’s hospitals and that tax-payers are getting ‘value for money’.

2. Assume the Department of Immigration decides to reduce Australia’s migration intake. Members of parliament will question the Minister for Immigration about how this decision was made, and what impact it will have on society and the economy.

3. Assume the Minister for Planning awards a planning permit to her brother’s construction firm, allowing it to build a shopping centre. Questions about whether this was appropriate would be asked by members of the Opposition in parliament. If such a decision was found to be inappropriate, the Minister would be expected to resign.

Exam Tip: If an examination question asks you to explain a principle of the Australian parliamentary system, you can therefore choose any one of the following three to use.

Exam Tip: Never define a term by using the same word. For example, never define ‘responsible government’ by using the term ‘responsible’ – when explaining this principle, use the word ‘accountable’.

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The separation of powers The ‘separation of powers’ is a principle designed to protect against the abuse of power by anyone involved in our legal system. Within our legal system there are three important ‘functions’ or ‘powers’, each of which is exercised by different bodies so they can act as a check and balance on each other. The legislative function, the power to make laws, is exercised by parliament.

The executive function is the power to administer laws, to ‘conduct the business of government’, and is exercised by the Prime Minister and Government through ministers being in charge of government departments.

The judicial function is the power to apply laws when disputes arise and to resolve these disputes, and is exercised by the courts.

In theory, all three powers are kept separate from each other and there should be no interference between these three branches.

In Australia, however, there is not a complete separation of powers. There is an overlap between the executive and legislative branches of government, as ministers (who are in charge of government departments and therefore exercise executive power) are also members of the parliament (which exercises legislative power). The judicial power is kept the most separate, because of the importance of the independence of the judiciary. ONLY courts and tribunals have the power to apply the law and resolve disputes, and neither the executive nor the legislature can interfere with judicial process.

Exam Tip: The separation of powers is one of the ‘parliamentary principles’ but, as you can see, it encompasses more than just parliament. The separation of powers is not a separation of power within parliament – it is a

separation of power between three different branches of government, one of which is parliament. It helps ensure that parliament does not have too much power.

The separation of powers – hypothetical example: Assume the Victorian Parliament passes a new law making it an offence to carry a knife and also enabling police to conduct searches for weapons (legislative power in action). The police conduct searches in places they think knife violence is an issue, and identify those suspected of carrying knives and collect evidence against them (executive power in action). When individuals are charged with breaking this new law, a court decides whether the law has been broken and, if so, imposes a punishment (judicial power in action). The executive and legislative powers overlap – the Minister for Police (responsible for managing how the police force is trained and how many officers are employed, etc.) is also a member of parliament and was therefore involved in debating and passing this new law. However, we have completely independent courts: only the courts can exercise judicial power. Judges cannot sit in parliament or be executive ministers, and no MP or member of the Government can be a judge. Unless they are proven to have acted inappropriately, judges also cannot be removed, even if they make decisions the parliament or ministers dislike. They are completely separate from any political pressure, and generally do not fear public displeasure because they do not have to stand for election every few years – they must objectively and without emotion apply the law to decide whether it has been broken.

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REVIEW/APPLICATION QUESTIONS 2 – Principles of the Australian parliamentary system 1. Which feature of the parliamentary system ensures that representative government is achieved? 2. If a member of parliament consistently acts in a way that is not accepted by the voters in his or her

electorate, what is the likely outcome at the next election? 3. How can the political party in government be affected by the principle of representative government? 4. Explain how the principle of representative government ensures that the views and values of the

majority of the people are listened to. 5. If parliament does not make law that is in line with the majority’s views, do we still have a

representative government? Explain. 6. What does the word ‘responsible’ mean, in the context of the principle of responsible government? 7. To whom is the executive government responsible? 8. To whom is the parliament responsible? 9. Outline how ‘Question Time’ illustrates the principle of responsible government in practice. 10. How does the principle of responsible government ensure that Government ministers are held

accountable for the power they have over their departments? 11. Who performs each of the functions in the Australian system? a. Legislative function. b. Executive function. c. Judicial function.

12. What role is performed by each of the arms of government? a. Legislative arm. b. Executive arm. c. Judicial arm. 13. In the Australian system the executive and legislative functions overlap. Explain how ministers

exercise both executive and legislative powers. 14. Outline two ways in which the judicial arm is kept almost entirely separate from the legislative and

executive arms of government. 15. In 2005 a new crime of ‘defensive homicide’ was created, and in 2011 the first woman was found

guilty of it after killing her abusive husband. a. Explain how this case illustrates the role of each branch of government in the separation of powers.

THE MAKE-UP OF PARLIAMENT

Structure of Parliament The Commonwealth and Victorian Parliaments are both bicameral: they consist of two houses of elected representatives, an upper house and a lower house. In addition to these two houses, each parliament includes the Crown: the Queen. Since the Queen does not live in Australia, however, her role is performed by her representatives. In the Victorian Parliament her representative is called the ‘Governor’, while in the Commonwealth Parliament her representative is called the ‘Governor-General’.

VICTORIAN PARLIAMENT COMMONWEALTH PARLIAMENT

REPRESENTATIVE OF THE CROWN Governor REPRESENTATIVE OF

THE CROWN Governor-General

NAME OF THE UPPER HOUSE Legislative Council NAME OF THE UPPER

HOUSE Senate

NAME OF THE LOWER HOUSE

Legislative Assembly NAME OF THE LOWER HOUSE House of Representatives

Each of the three parts of parliament has its own role to play in law-making and the parliamentary system.

Exam Tip: The most common error when outlining the structure of parliament is forgetting to include the Crown or her representative. We have bicameral parliaments at Victorian and federal levels, but parliament will always

include the Crown as she is our head of state.

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The roles of the Houses of Parliament

Victorian Parliament Roles of the Legislative Assembly 1. Formation of government.

The political party (or coalition of parties) with the support of the majority of seats in the Legislative Assembly forms government. This is why the lower house is called the ‘Seat of Government’.

2. Initiating the majority of new legislation.

Because the Government introduces most new legislation and it holds the majority of seats in the lower house, the majority of new bills are introduced in the Legislative Assembly.

3. Initiating money bills.

All legislation that raises government revenue through taxation and spends government money MUST be introduced in the lower house. The Legislative Council does not have the power to do this.

Roles of the Legislative Council 1. Initiating new legislation.

New bills (except money bills) can be initiated in the upper house, although in practice most bills are introduced in the lower house.

2. Reviewing bills passed by the Legislative Assembly.

As explained above, most bills are introduced in the lower house. As the majority of new legislation is introduced by the Government (which holds the majority of seats), government bills pass through the lower house relatively easily. However, to become law, a bill must pass both houses, so the upper house performs an important role reviewing these bills. It must ensure that proposed laws are reviewed and debated, to check that they are truly in society’s best interests. The Legislative Council should make sure that radical changes to the law are not rushed through parliament. Members of the upper house will often suggest amendments to improve the bill before they vote in favour of it. This

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should improve the way the new law operates, overcoming any errors or omissions made by the lower house when they first passed the law.

3. Representing voter interests.

Members of the Legislative Council do not each represent only one small electorate like members of the lower house do. The different voting system for the upper house means that each member does not need a majority vote to get elected; essentially, they just need to be in the top five candidates for their district. This means that members of the Legislative Council can give a voice to minority interests more easily than members of the lower house can when scrutinising bills and debating.

Commonwealth Parliament Roles of the House of Representatives 1. Formation of Government.

The political party (or coalition of parties) with the support of the majority of seats in the House of Representatives forms government. This is why the lower house is called the ‘Seat of Government’.

2. Initiating the majority of new legislation.

Because the Government introduces most new legislation and it holds the majority of seats in the lower house, the majority of new bills are introduced in the House of Representatives. Most Government ministers also sit in the lower house, and so choose to initiate bills relevant to their departments there so that they are present to explain to the parliament the contents and purpose of the bills in their Second Reading Speech.

3. Initiating money bills.

All legislation that raises government revenue through taxation and spends government money MUST be introduced in the lower house, pursuant to section 53 of the Australian Constitution. The Senate can pass or reject money bills, but they do not have the power to initiate or amend them. This gives the lower house a special role in scrutinising Government administration and expenditure.

Roles of the Senate 1. Acting as a House of Review.

Since most bills are initiated in the lower house, the Senate spends more time reviewing, debating, researching and amending these bills: it is a powerful check on Government power, and is a significant hurdle in the way of poorly-considered or unfair legislation being created.

The Senate is well-placed to be a House of Review for a number of reasons. Firstly, it is usually controlled by neither the Government nor the Opposition. If minor parties or independents hold the deciding votes – called the ‘balance of power’ – the Government will be forced to listen to their suggestions for improving the bill. Secondly, the Senate has a much more active and powerful committee system than the lower house does. These committees frequently spend months scrutinising a bill in detail, and will then report back to the house.

2. Acting as the States’ House.

Each state has equal representation in the Senate – 12 Senators – and each Senator is theoretically expected to vote to protect the interests of their state.

The House of Representatives is structured so that states with larger populations have many more representatives than those with smaller populations. At present, well over half the members of the lower house come from Victoria and NSW, while only five of the members come from Tasmania. In theory, this enables these two states to pass bills through the House of Representatives which suit their interests, at the expense of the other states.

Exam Tip: The focus in previous years has always been on the federal parliament, or on the houses of parliament in general. However, students should remember that most of the roles of the houses are the same between the state

and federal parliaments.

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At the time of federation, citizens in the smaller states were concerned these larger states would dominate law-making. The writers of the Constitution, therefore, guaranteed equal representation in the Senate to every state, regardless of its population. This would ensure the needs of the smaller states would not be overridden by the larger states.

Is the Senate an effective States’ House? In general, Senators vote for or against bills along party lines (that is, they vote as the leader of their political party dictates), rather than voting for or against legislation based on whether a particular bill is in the best interests of the states they are elected to represent. Therefore the Senate’s role as a ‘States’ House’ often is not fulfilled. Independent Senators provide an interesting exception. Occasionally, a Senator may be elected who is not a member of a political party. He or she may chose to vote for or against proposed legislation based on how that new law affects the people and businesses in his or her home state. For example, assume there is an independent Senator from South Australia. The Commonwealth Parliament may be passing a new law that allows farmers in Queensland and NSW to take more water out of the Murray-Darling river system; this independent Senator from South Australia might vote ‘no’ on the proposed law because it will hurt the supply of drinking water in Adelaide. South Australian Senators who are members of the Liberal Party or Labor Party will not have this freedom to protect the interests of their state – they will vote ‘yes’ or ‘no’ for the bill based on the instruction of their party’s leader. Is the Senate an effective House of Review? The Senate achieves its important review function to an extent. Whether it provides effective scrutiny and review of new laws depends on the composition of the Senate at the time the bill is debated, however. Sometimes, the government party may control both houses of parliament (although this is relatively uncommon). In such cases, the Senate may merely approve the legislation passed by House of Representatives, without adequate review and scrutiny – at these times, the Senate is called a ‘rubber stamp’ for Government bills. On other occasions, the Senate may be controlled by the Opposition party. This means they will ensure bills are debated and reviewed before being passed, because they will not automatically support the Government. The Opposition may demand certain amendments to a bill before voting ‘yes’ and radical changes in the law won’t be rushed through parliament.

Unfortunately this power can also be abused by the Opposition, who could block bills for political point-scoring rather than because the bill is bad – at these times, the upper house is called a ‘Hostile Senate’. When the balance of power in the Senate is controlled by minor parties or independents, the government will need to work with these Senators (or the Opposition) to obtain their support to pass legislation. These members may request amendments to the legislation in return for voting ‘yes’ on the bill. In this circumstance, as bills are being debated, scrutinised and amended the Senate is achieving its review function. In 2006 the number of Senate committees was halved, however, which effectively doubled the workload of each committee. This impaired the ability of the Senate to review proposed laws thoroughly. In the Victorian Parliament, the effectiveness of the Legislative Council at

reviewing new legislation is similarly dependent upon which political party holds the majority of seats (or the ‘balance of power’) in that house.

Exam Tip: The Senate and the House of Representatives have equal powers with respect to initiating bills – except for money bills. One role of the Senate is therefore to initiate legislation, but the vast majority of bills begin in the

lower house so it is not traditionally considered a major role of the upper house.

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The roles played by the Crown The Crown is represented by the Governor-General in the Commonwealth Parliament and the Governor in the Victorian Parliament. With respect to law-making, the Crown’s primary function is to grant royal assent to bills that have passed the lower and upper houses of the parliament. Giving royal assent to a bill involves the Queen’s representative signing the bill on the Queen’s behalf. This must occur before the bill becomes law. In practice, royal assent is always given to legislation on the advice of the prime minister or premier, however the Governor-General (not the state Governor) does have the theoretical power to withhold or delay royal assent, or to request amendments before giving it. As Section 58 of the Australian Constitution says:

Royal assent to bills

When a proposed law passed by both Houses of the Parliament is presented to the Governor-General for the Queen’s assent, he shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen’s name, or that he withholds assent, or that he reserves the law for the Queen’s pleasure.

Recommendations by the Governor-General

The Governor-General may return to the house in which it originated any proposed law so presented to him, and may transmit therewith any amendments which he may recommend, and the Houses may deal with the recommendation.

Other roles of the Crown in the Australian parliamentary system The Queen’s representatives perform other important functions in the parliamentary system, such as: Appointing judges to courts (on the advice of the prime minister or premier); Designating sitting dates and times for parliament (on the advice of prime minister or premier); and Dissolving the houses of parliament to bring about an election (again, on the advice of prime minister or premier). The Crown will generally act on the advice of the Government of the day or of the parliament, however there are some roles that it can perform without advice. These are called the Crown’s ‘reserve powers’, and it can use them to ensure that the country remains governed. Examples of reserve powers are: Appointing as Prime Minister the leader of the party that controls the

majority of seats in the lower house of parliament. Dismissing a Prime Minister who has lost the confidence of parliament –

as demonstrated in 1975 when Sir John Kerr dismissed Prime Minister Gough Whitlam when he was unable to pass the budget.

Calling a double dissolution of both houses and a general election, against the advice of the Prime Minister. The reserve powers are not listed explicitly in the Constitution. The Crown has them mainly by convention – in other words, because historically they have.

Exam Tip: Apart from royal assent, the other roles of the Crown are not explicitly listed in the Study Design. This means there is some flexibility regarding which roles students can choose to specialise in. Students should

therefore ensure they have a selection of roles, with royal assent being one of them.

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REVIEW/APPLICATION QUESTIONS 3 – Roles of the Crown and houses of parliament 1. In which house of the Victorian Parliament is the executive government formed after an election? 2. In which house of the Commonwealth Parliament is the executive government formed after an

election? 3. What is the rule for which party forms the Government? 4. Could the House of Representatives change Government between elections, without the people

having a say? Explain your answer. 5. In which house of parliament are most bills introduced? 6. Identify two reasons why most bills are initiated in this house. 7. The upper and lower houses of Federal Parliament do not have exactly the same power when it comes

to initiating bills. Outline what the difference is. 8. Why is it appropriate that most scrutiny of Government administration and expenditure occurs in the

lower house? 9. The Legislative Council is intended to act as a House of Review. a. Describe this role of the Legislative Council; and b. Discuss when the Legislative Council will be an effective house of review and when it may fail to

achieve this role. 10. What does the phrase ‘balance of power’ mean 11. Outline two reasons why the Senate is a more effective House of Review than the House of

Representatives. 12. What problems arise from having the same political party in control of both houses of parliament? 13. What problems may arise from having the Opposition party in control of the Senate? 14. How many Senators does each state receive? 15. Explain why the lower house is not the States’ House. 16. In what ways does the make-up, or composition, of the Senate protect state interests? 17. Discuss the extent to which the Senate achieves its role as a states’ house. 18. Who represents the Crown in the Victorian and Commonwealth Parliaments? 19. Describe the primary role of the Queen’s representatives with respect to law-making. 20. Identify two other roles of the Crown in the Australian parliamentary system. 21. Does the Crown have a lot of power in the Australian system, or are they more accurately described as

a ‘figurehead’ or ‘dummy’? Give reasons for your answer.

CHANGE IN THE LAW

Reasons why laws may need to change (including contemporary examples) Students must be able to explain reasons why laws change and give up-to-date examples of changes in the law.

Laws need to be altered for a variety of reasons, including: Change in society’s values Laws must match community values – otherwise they won’t be accepted and followed. So as society’s values and beliefs about what behaviour is acceptable change, laws must also change. For example: Values about abortion have changed dramatically over time. In the 1950s and 1960s many members of society thought abortion was morally wrong, however over time more and more individuals have decided women ought to have the right to choose for themselves whether to terminate a pregnancy. So in 2008 the Victorian Parliament removed abortion from the Crimes Act 1958. Before this change in the law, the Victorian Law Reform Commission conducted research into Australians’ attitudes towards abortion. They reported that (as at 2005) 81% of Australians either agreed or strongly agreed with the proposition that: “A woman should have the right to choose whether or not she has an abortion.” Legislation making it unlawful to seek or provide an abortion was clearly not consistent with the majority of society’s values, so the law was changed.

Exam Tip: No timeframe for ‘contemporary’ is given in the Study Design, but five to six years is generally considered a safe range for current cases and examples.

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Documents

THE CPAP STUDY GUIDE TO VCE LEGAL STUDIES - … Preview_copy.pdfLEGAL STUDIES 1st edition (2012) ... Megan Blake (LLB.,B.A.(Melb) Dip.Ed. ... Reasons for interpretation of statutes