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 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 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 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 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.

Alternative dispute resolution methods within the civil justice system uphold the principles of fairness, equality and access to a moderately high extent.

Firstly the principle of fairness is upheld by the increased party control offered by mediation and conciliation due to the ability of the parties to achieve their own outcome. As mediation and conciliation both see parties reach a mutually beneficial outcome through negotiation, it is likely to be agreed upon and therefore accepted by both parties. As such the outcome is likely to be fair for both and not disadvantage one party as it is beneficial for both parties and is thus likely to be followed without having to utilize a deed of settlement or other extensive processes to make the outcome binding.

Fairness is also upheld as during arbitration and court trials, an independent third party makes the decision free from bias or prejudice and therefore allows for a fair outcome for both parties that they are bound to follow by an arbitral award or the judges remedy awarded.

The right to silence offers an accused person the ability to refuse to answer questions and give information during police questioning and prosecution as well as to choose not to provide a defense at trial without their silence or un-cooperation being interpreted as a sign of guilt. In exercising their right to silence, Emma’s presumption of innocence was upheld as it means that the jury in her County Court trial (on instructions from the judge) would not have been able to assume guilt based off her silence.

Community legal centres are general or specialised bodies that aid both victims and accused persons with legal issues. For Agu and Kim, their access to justice is upheld through the legal advice that CLCs provide. It was mentioned that the victims wished to file a civil claim and an insurance claim. CLCs can aid with filling out forms or preparing letters for legal reasons like contacting an insurer moreover CLCs can give advice on how to assist a civil claim going forward.

The judge will impose the sanction of imprisonment on Emma most likely. Because Emma has committed a category two offence, she is subject to up to 25 years of imprisonment for the cultivating of a commercial quantity of drugs. A term of imprisonment involves removing Emma from the community and placing her in prison for a specified period of time.

One factor the judge is likely to consider is the impact her crimes had on Agu and Kim. If Agu and Kim provided victim impact statements in court this would act as an aggravating factor on the judge’s sentence for Emma. Because of the extensive loss that has occurred to their lives and loss of income the judge may be more influenced to employ a harsher term of imprisonment on Emma because she took advantage of Kim and Agu’s property.

Enforcement issues refers to the ability of the defendant if found liable to comply with the court orders such as paying damages. One enforcement issue that should be considered is whether Emma has the ability to pay for the damages that Agu and Kim wish to seek. If Emma cannot afford to pay the damages, Agu and Kim should decide whether it is worth initiating a civil claim as there is a chance they will receive nothing in return and the trial will become a waste of time and costs for them.

Damages are able to achieve their purposes in this case to a moderate extent. One way in which compensatory specific damages may achieve their purpose of restoring Agu and Kim to their original position is by compensating for quantifiable financial loss. For example the awarding of compensatory specific damages in a value which matches the financial losses of demolishing and rebuilding their property will be highly effective at restoring Agu and Kim to their previous economic position.