QCAA Legal Studies Governance in Australia

One role of the Commonwealth Parliament is for both houses to pass the proposal for the referendum with an absolute majority. The lower house will provide its approval to the bill. The upper house will debate the bill but would also approve it in order for it to be a successful referendum.

One factor that contributed to the success of the 1967 referendum was that there was bipartisan support. Bipartisan support refers to when the two main political parties are both in support for the change, rather than solely the government in support and the coalition against it. This positively contributed to the 1967 referendum because of the ability for people to be more inclined to vote alongside their preferred political party. When voters in 1967 saw that their preferred party was in support they would have been more likely to vote “yes” because they believe that their party will do what is best for their voters and therefore voting yes was the right decision to make. This positively contributed to the 90.77% national support as both political sides were in agreement for the amendments.

The 1967 referendum was highly significant as it broadened the law-making powers of the Commonwealth Parliament to legislate for First Nation Australians. As the referendum passed with a large amount of support, fulfilling the double majority requirement, the Commonwealth Parliament law-making powers was extended to include making laws for indigenous people. Consequently they were able to move into a previously considered residual area of law making power and this resulted in the passing of the Native Title Act 1993 (Cwth) legislating over land rights of First Nations people. Furthermore this allowed the Commonwealth Parliament to pass laws in 1975 that over rid Queensland laws that were discriminatory against Indigenous Australians. Thus, the impacts of the 1967 referendum was that it broadened the Commonwealth Parliament’s law-making power.

One reason why the wording of the Australian Constitution may need to be reformed is to change the division of law-making powers. Since the Constitution limits the powers of the Commonwealth parliament, they could possibly want to expand their law-making powers so that they can make laws on some areas. By passing the Constitutional Alteration Bill and bring a referendum to the people, the Constitution may be able to be reformed.

A factor that may affect the success of a referendum is bi partisan support. Bi partisan support regards Australia's political duopoly, in which the country has 2 major political parties. (labour/liberal)

1-way bi partisan support may assist in affecting the success of a referendum is where it is present. This means both major political parties support constitutional reform, therefore members/supporters/those unaffiliated with any party are more inclined in voting in favour of change, thus in turn increasing the likelihood of success of a referendum.

Opposingly where there is a lack of bi partisan support, a referendum is likely to fail. Where 1 major political party opposes constitutional reform a "no" campaign is likely to be established, thus influencing members, supporters, those unaffiliated to adopt a conservative approach which may hinder the likelihood of a future referendum in succeeding.

Another factor that may affect the success of constitutional reform is the double majority requirement. Under S128, to change the Australian Constitution requires the approval of the people through a referendum. Where the people disapprove the referendum, proposals are unlikely to satisfy the double majority requirement (majority of yes votes across Australia and a majority of states) in turn leading to an unsuccessful attempt at constitutional reform.

The Australian Constitution acts as a check on Commonwealth Parliament in law making through the separation of powers. This principle divides the responsibilities into three distinct categories, thus checking the legislative branch of Commonwealth Parliament through the independent judiciary and executive. This is evident with the judiciary holding the power to interpret legislative principles through application ensuring that Parliament remain within their law making powers. This may occur through the protection of express rights, such as the freedom of religion in s116 as the courts can rule Parliament to have violated their abilities ruling the act ultra vires. However the separation of powers is limited through the overlap of branches, with the Prime Minister and cabinet members sitting in both the legislature and executive arms. This raises the possibility of corruption as the bodies making and administering the laws are composed of the same members.

The High Court acts as a guardian of the Australian Constitution through its determining of disputes relating to the Constitution and its interpretation of its wording.

If a parliament creates a law that is outside of its constitutional law-making powers, the High Court can declare this legislation ultra vires. This illustrates how the High Court guards the Constitution, ensuring that laws that contradict it are deemed invalid and reversed. However, this role is not proactive as the High Court must wait for a case to arise concerning unconstitutional legislation, and must be initiated by a person with standing, as the High Court is unable to declare legislation invalid of its own accord.

If a case arises requiring the interpretation of the wording of the Australian Constitution, this is another way in which the High Court can defend it. When these cases arise, the High Court acts as a guardian of the Australian Constitution by interpreting the words in a way consistent with the intentions of the drafters of the Australian Constitution, defending its integrity by either broadening or narrowing the meaning of the words.

The separation of powers checks parliament’s law making by separating the legislative powers from the powers that administer the law (executive powers) and those that enforce the laws (judicial powers). Laws made by parliament must be confirmed by the Crown, who holds executive powers under the separation of powers, allowing them to refuse radical or inappropriate bills through denying royal assent, acting as a check on parliament. This extends to the role of the judicial powers under the separation of powers, in which the judges of courts such as the High Court can declare laws that infringe on rights such as express rights, including S. 116 (limited right to freedom of religion), for example, as invalid. This allows the separation of powers to act as a check on laws made by parliament.

The High Court, through its interpretation of the Constitution, acts as a guardian of the Constitution. Ss 7 and 24 lay out matters relating to the Senate and House of Representatives, respectively. Both sections require members of parliament to be "directly chosen by the people", enshrining in the Constitution a principle of representative government, wherein the parliament reflects the views and values of the majority of society. The implied right to freedom of political communication was first established in the 1992 High Court case of ACT vs Commonwealth, and was later clarified in a series of High Court cases, one of which was Lange vs ABC. In ACT vs Commonwealth, the High Court held that the Constitution explicitly established a democratic system through ss 7 and 24 requiring parliament to be "directly chosen by the people", and they found an implied right to free political communication. Lange vs ABC took this further, by establishing that this right exists for all people at all times. In 1996, former PM of New Zealand, David Lange, brought defamation claims against the ABC for comments made about him on ‘Four Corners’. The ABC argued that they were entitled to free political communication due to ss 7 and 24, as well as the precedent set by ACT vs Commonwealth. The High Court found in favour of the ABC. This affirmed the right to freedom of political communication, but extended it to all people at all times, not just political parties prior to elections. This protected the Australian people by confirming their right to talk freely about matters of politics. However, the Lange case also recognised that limitations can be imposed on the expression of this right by parliament. The right to free political communication, whilst vital in ensuring representative government, is not a universal freedom to expression.

The following is an example of the beginning of a high-scoring response:

The High Court has had an impact on the division of law making powers to a reasonably high extent through the interpretation of the Australian Constitution.

Through the interpretation of section 51(xxix) of the Australian Constitution, the High Court has shifted the division of law-making powers in favour of the Commonwealth Parliament. Section 51(xxix) or the ‘external affairs’ power has been interpreted as giving power to the Commonwealth parliament to enact obligations set out in international agreements into Commonwealth law, potentially extending their powers beyond areas entrenched into the Constitution. Thus, extending Commonwealth powers into areas of residual power.

The Commonwealth parliament has the power to legislate in areas of exclusive and concurrent powers. Exclusive powers are powers outlined in the Australian Constitution as being exercised solely by the Commonwealth parliament, such as currency. Concurrent powers are powers outlined in the Constitution belonging to both state and Commonwealth parliaments, such as marriage. Residual powers are powers not outlined within the Australian Constitution thus exercised solely by the states parliaments, such as areas of environmental law.

The bicameral structure of the Commonwealth Parliament (CP), protected by section one of the Australian Constitution (AC), impacts the ability of parliament to make law. As the ‘Australian Labor Party’, the party in power (in government), has a ‘majority of seats’ in the House of Representatives, this may decrease the ability of the Commonwealth Parliament to make effective law. This is because a majority may prevent adequate debate in the lower house, with the government not having to negotiate bills with independent or minor members of parliament/parties to gather support to pass a bill. However, this makes for a more efficient law-making process in the lower house as the government does not have to water down its bills to have them pass, as sometimes independents and minor parties can make requests that are not in Australia’s interests.

Furthermore, as the government does not have a majority in the Senate, with only ‘26’ seats, this prevents the Senate from becoming a ‘rubber stamp’ which blindly approves legislation passed by the lower house. This encourages the scrutinising of legislation in the upper house, making for more efficient laws. However, this may result in a ‘hostile Senate’ which does not pass any bills, which means that laws that benefit Australians may not be passed.

I agree with this statement to a moderate extent. VCAT is an independent body that aims to provide access to a just, timely, cost-effective dispute resolution service, VCAT may "always" be appropriate if either parties are seeking a legally binding outcome. VCAT offer a final hearing which involves both the plaintiff and the defendant to have equal opportunities to present their case including evidence to a VCAT member. This final hearing comes to the resolution through legally binding decision that the VCAT member will decide after giving both parties equal opportunities to present their case. This means that if a member prefers a legally binding outcome as it ensures that the remedy proposed will be fulfilled. VCAT may "always" be an appropriate body moreover because the final hearing is less costly and formal.

One effect of statutory interpretation is the narrowing of the meaning of words. This means that via interpreting the meaning of legislation, the courts can narrow the meaning of a word, thus narrowing its application in the future for all courts lower than the court in which it was interpreted. This was demonstrated in Deing v Tarola, in which the courts interpreted the word ‘weapon’ to mean anything used to harm others or with the intent to harm others, meaning the studded belt, previously considered a weapon, was no longer a weapon as it was not worn with that intent, demonstrating how statutory interpretation can narrow the application of the law.

The proposal for change will be unsuccessful in both Referendum 1 and Referendum 2.

This is because, as outlined in S128 of the Australian Constitution, for a referendum to be successful, more than 50% of Australia must support the change and more than 50% of individuals in 4/6 states must also support the change. Thus, referendum 1 will not be successful as there are only 2 states that have over 50% of people supporting the change. These states are Victoria (65.10%), and Queensland (61.87%). However, more than 50% of Australia supports the change but still this will be unsuccessful as 4/6 states (a majority in those states) need to accept and support.

Further, Referendum 2 will also not be successful as only 3 states (Western Australia, Tasmania, and Queensland) support the change. Thus, one requirement is already not satisfied. Also, there is no more than 50% of Australia supporting the change as only 49.44% supporting thus making this referendum unsuccessful as both provisions that need to be satisfied are not being satisfied.

The separation of powers acts as a check on the Cth Parliament to a moderate extent.

A benefit of the separation of powers is that the judiciary are independent from the legislative and executive arms of parliament. This independence ensures that laws passed by Parliament could be declared ‘ultra vires’ if challenged by a party with standing. Further, this separation ensures that no one body holds absolute power, where they cannot make law, administer it and rule on its legality simultaneously. Another advantage of the separation of powers is that the executive can be held accountable by the legislative during question time – via rigorous debate and scrutiny. Ergo, diffusing any potential concentration or abuse of power.

However, a limitation of the separation of powers is that there is a cross-over between the legislative and the executive. As members of the executive are drawn from the legislative, this can compromise the effectiveness and authenticity of this separation of powers, where some members who administer the law (the executive) can also vote to make it. Another curious feature of the separation of powers is that the judges in the judiciary are appointed by the executive. Thus, the judges could potentially be prone to harbour subtle biases – restricting this separation of powers.

Parliament and the Courts have an interconnecting role that compliments each other.

Because Parliament is the supreme law-making body, it results in them being able to legislate in many areas of law within their jurisdiction (they are unable to legislate on Constitutional matters as these must be left to the High Court). This means that Parliament is responsible for making laws that give the courts jurisdiction on the cases that they can hear, this is significant because Parliament can determine the court’s role and ability to hear cases. This is evident as Parliament passed the Magistrates Court Act and as a result the Magistrates Court can only hear cases the Act outlines. This leads to Parliament being responsible for virtually all courts/except High Court and how they can create law.

The following is an example of the beginning of a high-scoring response:

The doctrine of precedent is a judicial process whereby the ratio decidendi behind decisions in courts of superior record must be followed in lower courts in the same court hierarchy in cases with similar material facts. This implies that binding precedent can be somewhat restrictive in the ability of lower courts to adopt a broad or new interpretation of the law, in cases of similar material facts to existing decisions made in higher courts. However, judges can distinguish between the material facts of a case, as was done in Davies v Waldron which enables them to depart from existing reasoning and create new precedent. Thus, this ability of lower courts to distinguish between the material facts of cases where binding precedent has already been created in higher courts, indicates that lower courts can make law to some extent.

One reason why the County Court of Victoria may not be bound by a precedent set by the Supreme Court could be that they have been able to distinguish between the material facts of the case. If these material facts are dissimilar enough then the precedent wouldn’t apply and the County Court won't be bound by it, even if it were set by the Supreme Court in the same court hierarchy.

One of the ways that the Australian Constitution acts as a check on the Commonwealth parliament’s law making is through the express protection of rights. Express rights are explicitly stated in the Constitution and are entrenched, meaning they cannot be removed except by a referendum which provides a check on parliament’s law-making. Because of the double majority requirement and associated costs with a referendum, these 5 express rights are extremely hard to change. However, this is limited by the fact there are only 5 express rights entrenched in the Constitution, which compare to a proposed national bill of rights, is not much.

These express rights explicitly prevent the Commonwealth parliament from legislating in those specific areas. For example, if they were to pass a law saying that Victoria could not trade with Queensland, that would be unconstitutional. Therefore limiting the Commonwealth Parliament’s law-making ability, as they cannot legislate in these specific areas. However, the express rights only stop parliament from legislating in the areas explicitly written in the Constitution. For example, section 116 which protects the right to the freedom of religion is limiting in that several laws have and can be passed on religion, such as the Religious Discrimination Bill 2017, it only prevents the Commonwealth from legislating in the areas explicitly stated in section 116. Therefore is limited in its ability to provide a check on parliament.

The express rights as part of the Constitution’s ability to act as a check on the Commonwealth Parliament’s law-making is also limited by the fact that parliament can actually legislate on whatever they want, and for a law to be deemed unconstitutional, it must be challenged in the High Court of Australia (HCA), whom have the power to declare the legislation ultra vires, and invalidate the law. The HCA also requires a challenge must be brought by a party with standing, and they also must have reasonable access to resources, further limiting the ability of the Constitution to act as a check on the Commonwealth Parliament.

Therefore, it is reasonable to conclude that the express protection of rights via the Australian Constitution, allows for a limited check on the Commonwealth parliament’s law making.