VCAA Legal Studies The people and the law-makers

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 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 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.

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.

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.

Ratification is the action by which a State indicates its consent to be bound by an international treaty. It grants States the time necessary to seek approval for the treaty on the domestic level and to enact legislation, if needed, to give domestic effect to treaty obligations.

The federal government’s power to legislate in response to human rights issues is strengthened and weakened by the Constitution. The Constitution divides the power to make laws between the states and the Commonwealth, identifying the areas to which this power extends for each level of government. As it does not mention human rights issues and any issue not mentioned could be deemed to fall under the category of residual powers — power to make laws relating to areas not specifically mentioned in the Constitution — held by the states, the federal government’s power to make laws with respect to human rights issues could be described as non-existent. In contrast, s 51(xxix) provides that the federal government has the power to legislate with respect to ‘external affairs’. The High Court of Australia has interpreted this to include the power to pass laws giving effect to Australia’s obligations under international treaties and conventions, including those relating to human rights such as the Convention on the Rights of the Child. This strengthens the power of the federal government to make laws regarding human rights issues.

THE FOLLOWING IS AN EXTRACT FROM A FULL HIGH-SCORING RESPONSE:

One role of Victorian courts in law making is to create precedent. In this situation, a superior court can make common law in a case in which no current existing laws apply; allowing them to reduce inconsistencies in the legal system and provide certainty in the outcomes of cases. However, not all Victorian courts are able to do so, as only superior courts (Supreme Court trial division and Supreme Court of Appeal) have the power to do so. Judges in other lower courts are bound by binding precedent in most situations, and are restricted in their roles in law making.

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 as while the express protection of rights are effective in acting as a check on Parliament, they come with their limitations.

The express rights include five rights that are explicitly stated in the Constitution and can only be changed through a referendum. An advantage of the express rights is that if Parliament attempts to create a law that breaches the express right, it can be challenged by the High Court and will instantly be invalidated and declared ultra vires. This ensures that Parliament passes laws that act in accordance with the Constitution and therefore enabling the express rights to act as a check. However a disadvantage is that if Parliament passes a law that goes against the express rights, it can only be invalidated if it is challenged in the High Court. Additionally, a person that wishes to challenge an unconstitutional law made by Parliament must have standing meaning they are directly affected by the case they are initiating.

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.