Legal - Unit 3 Topic 1 Exam

double dissolution

when a dispute between the Legislative Assembly and the Senate cannot be resolved, the government (GG) can dissolve both houses and call for new elections for the two houses

explain the implications of single majority, double majority and minority governments

(Forms of government) Single majority government definition: - If it was referring to a Simple majority: 50% of the available seats +1 - Has a majority in the lower house (House of Reps) and not the upper house (Senate) Eg: As in the current Morrison Gvt 2019 Double majority government definition: - The same party controls both Houses Eg: Howard Govt 2004 Minority government definition: - When a government is in power but they have had to establish agreements with other independents or minor parties to ensure confidence (not going to throw the govt out) and supply (that the budget will get through). Don't control the lower house (House of Reps)

separation of powers doctrine

JEL - the principle that power is distributed among three branches/arms of government (the legislative, the executive, and the judicial) for the purpose of ensuring that no one person or group will make the law, interpret the law, and apply the law - The separation of powers in the Australian Constitution establishes the independence between the judiciary, legislature and executive Separation of powers: - The power to make (the Parliament) put into effect (the Executive) and interpret (the Judiciary) the laws of Australia are divided between these three groups - (different branches, not giving one group - certain people too much power) is very different from the division of powers (what level of government oversees what) Residual Powers: - An important feature of Australia's democratic government established by the Constitution is its adherence to the separation of powers doctrine (aims to keep separate the powers of the legislature, the executive and the judiciary - each branch works within its defined area of responsibility and keeping a check on the actions of the others) - The first three chapters of the Constitution underpinned this (1 - the Parliament, 2 - the Executive Government, 3 - the Judicature) Legislative - the power to make laws rests with the governments (all members of parliament from all parties) (Parliament - links with the executive as the prime minister sits in parliament and also appoints ministers) The making of law is called the legislative power and rests with the representative governments of the Commonwealth and States when assembled as parliaments Executive - the power to implement or carry out the law is handled by the Cabinet (state or federal - chosen by the leader of the government - they choose Ministers whom they trust so they are in both legislative and executive) The implementing or carrying out of the law is called executive power and is handled by the Executive or Cabinet, consisting of the Governor and the Ministers of the Government in the States, and by the Governor-General and Commonwealth Ministers federally. *Federal - governor-general and commonwealth ministers (the leader of the party in power chooses their government - Scott Morrison is Liberal) *State - governor and state ministers (Annastacia Palaszczuk is Labour) Judicial - the power to interpret laws is carried out by Judges (courts) - not allowed to be members of parliament or make known (only make laws when a statute doesn't exist, precedent isn't law) The interpretation of the law is called judicial power and is carried out by the courts and tribunals, Judges are prohibited from being members of parliament or the executive arm of government There is a vital importance of maintaining the independence of judges from the influence of the Parliament or the executive in their passing of judgements based upon their interpretation of the law - Judicature (system of the judiciary - the administration of justice, as by judges or courts) - refers to those employed in the administration of justice (High court is at the top of the Australian judicature), High court interprets and applies the law of Australia (constitution); resolve legal disputes between Australian parliaments, Australian governments and/or the states; to decide cases of special federal significance etc. * These powers were separated by the constitution to avoid injustice and a power imbalance which could arise if too much authority is held by one sector Legislative power - the making of the law is called legislative power and rests with the representative governments of the Commonwealth and States when assembled as parliaments Executive power - The implementation or carrying out of the law is called executive power and is handled by the Executive or Cabinet (consisting of the Governor and Ministers of the Government in the States and the Governor-General and the Commonwealth Ministers federally) - also involves police forces and other agencies of enforcement *The Executive: - The power to administer the law by carrying on the business of the government and maintaining order and security - Exercises political power on a day to day basis * Federal: The executive power of the commonwealth is vested in the governor-general as advised by the federal executive council consisting of the prime minister and other ministers * State: state constitutions vest executive power in the governor as advised by the executive council (premier and other state ministers) - The doctrine of separation of powers states that the arms of government should remain as functionally separate as possible - However, in Australia, members of the executive (Prime Minister/Premier/Chief Minister and other Ministers) are also members of the legislature (chosen from the parliament) - (federal and state parliaments) - which means the legislature and the executive are not strictly separate (there is overlap - not a pure separation) - Eg. The prime minister is member of the house of reps and sits in parliament, but they are also a member of the executive government and exercises that power * This explains why the judiciary works so hard to maintain its strict separation from the legislature and executive. Judicial power - The interpretation of the law is called judicial power and is carried out by the courts and tribunals, it is of vital importance to maintain the independence of judges from the influence of parliament or the executive in their passing of judgements based upon their interpretation of the law In a free society, the Parliament, the executive government and the courts are separate and act independently without interference from each other Judicial Legislative Executive Provides checks and balances of corruption - a judiciary can't take control and create unfair laws (people with high power are held accountable) * Legislative - s1 of the constitution - vested in a Federal Parliament (those involved - Queen, Governor-General, Senate, House of Representatives - The Parliament of the Commonwealth) make laws, check, modify and abolish if necessary * Executive - vested in the Queen and is exercisable of the Governor-General as her representatives - execution and the maintenance (whether laws are working, if legislation needs to be reviewed) - in reality, this power is exercised by the prime minister and the cabinet (Ministers) (s62 outlines the federal executive council to advise the governor-general on running the government) provide peace, administer the law (police) * Judicial - vested in the Federal Supreme Court (High Court) and other Federal Courts as the Parliament creates and invests with federal jurisdiction s72 (Chief Justice and other justices) (involved - High Court, Federal Court), courts of law - The separation of powers refers to the notion that, in a free society, the Parliament, the executive government and the courts are separate and act independently without interference from each other. - These powers of Government were separated by the Australian Constitution to avoid injustice and power imbalance which could arise if too much authority is held by one sector. - The Australian Constitution (refer to section 18) is the set of rules by which Australia is run. The first three chapters of the Constitution define three largely separate groups - the Parliament, the Executive and the Judiciary - and the roles they play in Australian governance. The power to make and manage federal law is divided between these three groups. This division is based on the principle of the 'separation of powers'. - Under this principle, the power to govern should be distributed between the Parliament, the Executive and the Judiciary to avoid one group having all the power. Each group should work within defined areas of responsibility so that each keeps a check on the actions of the others. Do we have true separation of powers? * Legislative and executive are interlinked - they are in no way separate (completely contradictory) * There is an overlap between the legislative and executive powers in the electoral system, as the Executive is made up totally of Ministers elected from the ranks of the political party in charge (eg. police forces are directed by the Minister of law and order) * Undermining the Westminster principle - this system of government means a small group of Cabinet Ministers (usually excluding other members of parliament) control what laws are proposed/passed (legislative power) AND oversee public servants in the execution of their duties (executive) * The members of the executive have to belong in the legislature * In Australia there's no confirmation process by the House of Representatives or Senate with a nomination to the High Court - The high court judges (judiciary) are appointed by the governor-general upon the advice of the Executive (overlap of powers) A true separation of powers doesn't exist, as there are some overlaps between who is involved in each branch. For example, the members of the Cabinet (executive branch) are chosen by the PM who belong to the legislative branch. Furthermore, the Governor-General who is part of the Executive branch chooses the High Court judges in the Judicature. - Judiciary (Judges - interpret laws) - Executive (Cabinet/Ministers - PM and GG to administer the law) - Legislative (Parliament/Federal and State - make laws

explain the differing legislative powers of federal and state parliaments under the Constitution, e.g. in the areas of health, education, immigration or the environment

- Exclusive, Concurrent, Residual powers - Reserve powers allow: the Governor-General to act independently without any advice - Both the Federal and NSW Parliaments enact anti-discrimination legislation: concurrent power - The power to make law with respect to marriage and divorce is not residual power - Residual powers are not those listed in the Constitution - Concurrent powers are those shared by the Commonwealth parliament and the states - Exclusive powers are not those which have been retained by the state parliaments - The power to legislate in areas of criminal law, such as homicide, is not an exclusive power - The printing of paper/plastic money and the minting of coins is an exclusive power - The states can not raise their own armies without permission of the federal government - Exclusive power examples (postal service, borders, taxation, external affairs, immigration, national security and marriage) The Legislature: - The arm of government which makes the law - The legislative power is the power to make law, and in Australia is exercised by the Federal Parliament and the various State and Territory parliaments - Federal parliament: lower house = house of representatives and upper house = senate, the monarch is represented by the governor-general - For the federal parliament to make a new law, the proposed law has to be voted upon and passed by the lower and upper house then approved by the governor-general (royal assent) - State parliament: except for Queensland, usually bicameral (lower house = legislative assembly and upper house - legislative council, monarch represented by the governor - For state law to be made, has to be voted on and passed by both houses and approved by the governor - In QLD: one house (unicameral) - just legislative assembly (easier/quicker for the government to pass legislation) - The lower house (federal) - house of representatives - the 'people's house' which provides equal representation for the people of Australia (voters) - 151 electorates (with roughly equal numbers of people) with 1 representative each in the lower house (the political party with the majority of members in the house of reps forms the executive government - selected people will become ministers) - Upper house (federal) - senate - the 'state's house' which protects the right of the states - there are equal numbers of senators from each state with 12 each (72 in total) in order to protect less populous states - the territories have 2 senators each (4 in total) - therefore 76 seats all up * For federal parliament to make a new law - proposal, drafting into a bill, introduced into the lower house (debate and vote - majority agree = pass), moves to the upper house (same occurs), before a bill can become law it has to receive approval by GG or G in the state (royal assent), once received it will come into effect (commencement) * s57 of Constitution states that if senate fails to pass a bill passed by the lower house, and after three months it is rejected again - the governor-general is empowered to dissolve both houses (double dissolution) - meaning that members of both houses of parliament are dismissed and an election will be held to create a new upper and lower house * If this then happens AGAIN the GG has the ability to combine the two houses into a single sitting to vote on the legislation once and for all (as the house of representatives is twice the size, it is likely that legislation will be passed)

describe accountability of parliament and the rule of law

- Parliament is democratically elected. This means that, in theory, its members reflect the feelings, attitudes and values of the community. Members eventually face re-election, and this is an incentive to ensure that they continue to reflect the community's views and do not act in an unaccountable manner. - A government has decided to confiscate land belonging to farmers even though the High Court has determined that this action is illegal: violation of the rule of law Rule of law: - The Rule of Law Institute is an independent non-profit association formed to uphold the rule of law in Australia, it's objectives are: * To foster the rule of law in Australia * To promote good governance in Australia by the rule of law * To encourage truth and transparency in Australian Federal and State governments, and government departments and agencies * To reduce the complexity, arbitrariness and uncertainty of Australian laws Three aspects of the rule of law: - no one can be punished or made to suffer except for a breach of law proved in an ordinary court - no one is above the law and everyone is equal before the law regardless of social, economic, or political status - the rule of law includes the results of judicial decisions determining the rights of private persons - Threat to the rule of law by a flood of legislation: - The new laws confer further power on the administration, increasing fear of regulation and confidence in law - With the growth in legislation, the community can never hope to sufficiently monitor and scrutinise the important changes * Senate Scrutiny of Bills Committee (examines all bills which come before the Parliament and reports to the Senate whether such bills): - trespass unduly on personal rights and liberties - make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers - make rights, liberties or obligations unduly dependent upon non-reviewable decisions - inappropriately delegate legislative powers - insufficiently subject the exercise of legislative power to parliamentary scrutiny * Office of the Queensland Parliamentary Counsel/Scrutiny of Legislation Committee: - a function of the Office of the Queensland Parliamentary Counsel is to advise on the application of fundamental legislative principles to proposed legislation - fundamental legislative principles are the principles relating to legislation that underlies a parliamentary democracy based on the rule of law - QLD also has a Scrutiny of Legislation Committee which considers proposed Bills according to the fundamental legislative principles * Stern Hu - the right to a fair trial: Rule of law issues: - Denied proper legal representation Australian media and diplomats excluded from the courtroom - Presumption of innocence lacking in this case - Mr Hu's lawyers were denied parts of the prosecution evidence before trial so could not prepare a proper defence, also denied the opportunity of cross-examination of some witnesses as well as the presentation of some defence evidence at trial (right of the defendant to view prosecution evidence/Police must not conceal evidence) - Accountability of the Australian Government * The purpose of the Competition and Consumer Act 2010 (CCA) is to enhance the welfare of Australians by promoting fair trading and competition, and through the provision of consumer protections (product safety and labelling, unfair market practices, price monitoring, industry codes, industry regulation - airports, electricity, gas, telecommunications, mergers and acquisitions) - this is regulated by the ACCC * it is a fundamental principle of Rule of Law that a person's liberty is not interfered with in any way except by Court Order (supreme or federal) * The elements of the rule of law are the building blocks that support our freedoms: - Judges must be independent and make their own decisions free from government interference - Freedom of the press to keep us informed about what is going on in the world, free from the government deciding what can and can't be published in the media - Peaceful assembly and free speech of the people are essential to a democratic society - Government officials (people with power, money and connections) must be held accountable for their actions if they are corrupt in their dealings - Independent lawyers to represent your interests is a right for everyone, even if it is against the government, they can't be threatened to not take a case - Everyone has the right to a fair trial and access to legal representation, even suspected terrorists, they must not be thrown in jail without sufficient evidence and a jury decision beyond a reasonable doubt - All citizens have the right to equal treatment without discrimination toward their race, religion or disability Examples of the rule of law in the constitution: - Equality before the law eg. Anti-discrimination law * S 51 (xxvi) the people of any race for whom it is deemed necessary to make special laws. Parliament has the power to create laws to protect citizens. S 51 (xxiv) the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States - Checks & Balances on the use of power eg. Metadata & surveillance powers, Coercive Powers * S61 Executive Power S58 Royal Assent Separation of powers built into the constitution (Executive, concurrent powers and exclusive powers) - Rights of the accused and victims eg. Metadata & surveillance powers, Coercive Powers * S73 Appellate jurisdiction of High Court The accused can use the appeal process through the court hierarchy if an injustice has taken place - Presumption of innocence eg. Anti-association laws Bail and remand, Mandatory sentencing * S73 S80 Trial by jury - Independence of the judiciary eg. Mandatory sentencing (restricted judicial discretion) * Chapter III of the Australian Constitution covers a range of issues regarding judges - Right to assemble eg. Metadata & surveillance powers, protests, unions * Not in the Constitution, found in international treaties: * articles 21 and 22 of the International Covenant on Civil and Political Rights (ICCPR) * article 8(1)(a) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) - Freedom of speech eg. Freedom of political communication, freedom of the press/media * not found in the constitution, it is an 'assumed right' under the rule of law - Access to justice eg. Anti-discrimination law * not in the constitution, is an assumed right - Knowing the law eg. The legislation is readily available online to the public *This is how the rule of law is a connection to the constitution - it has been published for all to know (a feature of a just law) Examples of the rule of law in the Lindy Chamberlian (dingo ate the baby case): *Equality before the law: - She, fortunately, had excellent lawyers, the church had to help pay, they had to eventually pay them back - Compensation claim did help to pay this back She was given access to legal counsel, appeal decision regardless of residence and gender - Although it was unjust, she was allowed to apply for an appeal and 4 coronial inquests (although it took forever) - Right to compensation: the royal commission pardoned her of guilt in 1987 - a final decision of the court of appeal in 1988 was quashed, declared innocent. By 1992 the NT government was to pay 1.3 mill in compensation, $296,000 of that was legal cost, 19,000 for the car that was dismantled for evidence *Checks & Balances on the use of power: - The judiciary had to be separate from the government (they had to be held accountable as the separation of powers eg. police was corrupt, had failed) - Judges are appointed by the executive government, some lobbying going on, the Fitzgerald report helped this - The constitution through the division of powers means states and territories have residual powers eg. criminal codes (NT police overlooked evidence from indigenous trackers, eye witness reports) - The night before, a primary school-aged girl was bitten by a dingo - overlooked by the prosecution (there had been no official dingo attack in the country - attitude "dingo can't do that" - people thought dingo wouldn't do that) - Police were embarrassed afterwards - them and us attitude (wanted to 'prove the southerners wrong') Police relied on forensic 'experts' without sufficient credentials and unsubstantiated forensic methods - There was actually no blood, but the rust from the car manufacturer - There was a relentless case by the public and police to charge her - Before the baby was killed, the park ranger suggested a dingo cull and that they were getting more aggressive (a significant piece of evidence that the police intentionally chose to not submit - they wanted to pin it on her to ensure that tourism didn't go down at Uluru) - Right to a fair trial - procedural fairness did not exist - The justice department wanted her guilty - We can make reform happen (police transparency) to ensure this doesn't happen again, as there is no point in getting justice by jailing/suing the officers in charge as they are retired or dead (Fitzgerald report - criminal justice commission which now investigates police behaviour) *Rights of the accused and victims: - 40 years seeking justice - Right to silence - she did not have to give evidence in court, the onus was on the prosecution to prove the case - The constitution allows for an accused of a serious crime to be trialled by a court of their peers - jury - However, based on the evidence, she didn't have the right to a fair trial - Right to access to legal representation - Convicted and sentenced to life in prison with hard labour - she was released after 3 years and her baby was taken away from her - Grave miscarriage of justice - Trial by media - did not present as a grieving mother that the media wanted *Presumption of innocence: - She was originally cleared by the coroner, the public wasn't happy - No body and no motive - yet she was charged with killing her baby in the front seat of the car (all within 10 mins) - Trial by the media: biassed articles which influenced how the public was divided for guilt or innocence (phrases coined by the Lindy Chamberlain case) - The first coronial inquest found her innocent, the second which didn't then lead to a supreme court trial where the jury found her guilty - The jury was meant to be impartial, however, the media coverage made this difficult - The case mounted against her - defied common sense, only seen as innocent due to a man falling at Uluru - they found the jumpsuit - An aboriginal tracker who saw dingo tracks was ignored - Coroner's inquest and forensic scientists evidence - Cross-contamination of evidence - gloves weren't used that often - Forensic scientist - said that it was a blood splatter but it wasn't - it was rust - Questionable evidence - Not all evidence was submitted... *Independence of the judiciary: - In a court of law and while parliament is active, you can say anything regardless of slander - Lindy Chamberlain was entitled to a trial with a jury, free from interference from the judge, police, media etc. the first coronial inquest, the coroner found her not guilty - However, filtered information was given by the media (can be biassed) *Right to assemble: - The media had the right to assemble outside courthouses to report on the findings - Trial by media - the media had leverage - Members of the public had the right to be in the public gallery during the trial - they wanted the truth to be told (the whole story) *Freedom of speech: - Before the decision of the supreme court finding lindy chamberlain guilty, she had access to the media to make statements - The media had access to the courtroom proceedings and were allowed to report back to the Australian public - Fanciful theories established to condemn the parents by the public and in the media - Communication/culture at the time was different - Convicted because she didn't look like she was the morning/grieved in silence - The media twisted things (manipulated the situation - represented her as 'stone-faced') - People thought (media) she was sacrificed by her parents because of their religion - Seventh-day Adventists - She is still being ridiculed today - The only time you can't have freedom of speech if it is a defamatory remark *Access to justice: - Numerous appeals were granted - Dismissed appeals - 1.3 million in compensation - but nothing can compensate that (took 32 years for coroners inquest to declare that Azaria was attacked by a dingo) - Coronial inquests were established - Did she have a fair trial - it was argued that she didn't "trial by media" and a grave miscarriage of justice *Knowing the law: - She was charged with murder - life - He was charged with accessory to murder - Criminal Code Act (1983) Northern Territory 126 murder - She hired legal representation from victoria which meant counsel needed to know the appropriate procedures and law pertaining to the Northern Territory, the jurisdiction where the crime took place - she didn't want bias Lindy chamberlain - good case as an example of the rule of law in the exam: - Have to be able to describe the rule of law (50/60 words - set of principles by which we are governing ourselves, give an example of what these principles are, give examples of how this looks) - Understand that society believes in the idea of natural justice - the right to a fair trial, fair and equitable access to justice, the evidence isn't tampered with. Extended response section: - Evaluate the legal situation using analysis by: *Presenting alternatives to make a decision or propose recommendations *Justifying using multiple legal criteria (legislation - appeal remove, reform - bringing in a justice commission eg. Fitzgerald inquiry, constitution, case law, the rule of law, fair and equitable decisions - access to justice) and discuss implications - Eg. The current method breaches the rule of law principle of freedom of speech by... Extended response: Reforming the law Referendums to amend the constitution - indigenous Australians Hints are in the stimulus What can you do to add to the stimulus

analyse and evaluate the ability of the Australian legal system to achieve just and equitable outcomes in a range of real-life situations, e.g., the division of powers, the role of the Senate, constitutional protection of rights, and the separation of powers

- S41 of the Australian Constitution gives Australian citizens the right to vote - Which right is NOT entrenched within the Australian Constitution: the right to education (is - voting, property, a jury trial) ICCPR Article 25 states: - Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: - To take part in the conduct of public affairs, directly or through freely chosen representatives; - To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; - To have access, on general terms of equality, to public service in his country - The Australian Parliament passes an Act protecting an individual's freedom of religion, this has been created: a legal right (Legal rights = apply for bail, silence, challenge jurors, a fair trial/seek legal representation, trial by a jury, be given reasons for decisions, appeal a court decision, not to be tried twice for the same defence) Natural justice: - Judges are always required to provide reasons for their decisions, this best illustrates: the operation of the doctrine of natural justice - What is NOT an essential feature of a just law: it is passed by a democratically elected parliament (is - effective remedy, widely known to the community, applies equally) - Demonstrates the operation of a just law: statutes are made available on the internet - The Territories are represented in the Senate Division of powers (practice exam questions): - Using one example, explain the difference between exclusive and concurrent powers. - Is it possible for the Federal Minister of Health to amend the Queensland employment structure for health workers?

analyse and apply features of the Australian Constitution, e.g. challenges of changing the Australian Constitution, using past referenda as examples

- The Australian Constitution is the set of rules by which Australia is run (Commonwealth of Australia Constitution Act 1900) - Constitutional Monarchy (Monarch must rule within the framework set down in the constitution) - It has been forty years since the last successful referendum to change the Constitution with eight further proposals rejected by the Australian people - The Constitution must become better aligned with Australia's modern values, especially considering that every political party supports the recognition of Aboriginal peoples, and no model for change has been agreed upon (s25 and 51 - allows discrimination based on race, despite the anti-discrimination act) - Out-of-date provisions in the Constitution are not allowing Australia to further progress and adapt to meet modern issues, therefore, a Constitutional Review Commission should be created to generate proposals for reform and listen to the public Does the constitution need amending? - It has been forty years since the last successful referendum to change the Constitution with eight further proposals rejected by the Australian people - The Constitution must become better aligned with Australia's modern values, especially considering that every political party supports the recognition of Aboriginal peoples, and no model for change has been agreed upon (s25 and 51 - allows discrimination based on race, despite the anti-discrimination act) - Out-of-date (historically and morally) provisions in the Constitution are not allowing Australia to further progress and adapt to meet modern issues, therefore, a Constitutional Review Commission should be created to generate proposals for reform and listen to the public - It gives Parliament the ability to discriminate against a race of people (aboriginal and Torres strait islander) - We are a multicultural society - There is a racial discrimination act and state acts - but the parliament is allowed by the constitution to discriminate on the basis of race (constitution overrides all other legislation) - We must carefully consider the wording as judges have the ability to interpret the law in their own way (must be fair for indigenous Australians) - Discrimination against people on the basis of their race is unfair, and Australians don't accept it in our multicultural society. - We have laws to prevent it in every state and territory. And, a national law called The Racial Discrimination Act. - But the Australian Parliament can set this law aside. - That's why one proposal for changing the Constitution, is to include a guarantee against racial discrimination. - That would legally bind the Australian Parliament. - The guarantee could be included in a new section that prevents the Australian Parliament from discriminating on the basis of race. - Or a new power, for the Australian Parliament to make laws for Aboriginal and Torres Strait Islander peoples but only for their benefit, and not to discriminate against them. - But, because the Constitution can be interpreted in different ways by different judges, we need to carefully consider the effect of any changes. A proposed amendment to the constitution must: - must be passed by an absolute majority of both houses of parliament - put to the Australian voters in the form of a referendum (passed by a majority of voters in a majority of states)

describe the key features of the Australian Constitution, e.g. s 51, s 109, s 128

- The Australian Constitution is the set of rules by which Australia is run. - s 25 (Provisions as to races disqualified from voting: The states can disqualify a certain race from voting and their votes will not be counted) - s51 sets exclusive powers (Powers of the Parliament - Legislative powers of the parliament: The Exclusive power of the Parliament shall, subject to this Constitution, have the power to make laws for the peace, order, and good government of the Commonwealth with respect to eg. trade and commerce, taxation, the export of goods, postal and telephone services, the naval and military defence etc.) - s51 gives Commonwealth the ability to make laws on marriage, immigration, postal service - s 51 xxvi (Legislative powers of parliament: The Parliament shall have the power to make laws with respect to the people of any race for whom it is deemed necessary to make special laws) - s109 (The States - Inconsistency of laws: when a law of a State is inconsistent with a law of the Commonwealth, the Commonwealth law shall prevail, and the State law shall, to the extent of the inconsistency, be invalid) - s109 - if the state law conflicts the commonwealth law, the commonwealth law overrides - Commonwealth law prevails over state law when there is conflicting meaning - s 128 (Alteration of the Constitution - Mode of altering the Constitution: The Constitution shall not be altered except through a nation-wide referendum with a majority of votes in a majority of states voting (yes) referendum) - s128 states that the constitution can only be amended through a referendum - double majority (a majority of votes in a majority of states) - The first three chapters of the Constitution define three largely separate groups - the Parliament, the Executive and the Judiciary - and the roles they play in Australian governance. The power to make and manage federal law is divided between these three groups. This division is based on the principle of the 'separation of powers'. - Under this principle, the power to govern should be distributed between the Parliament, the Executive and the Judiciary to avoid one group having all the power. Each group should work within defined areas of responsibility so that each keeps a check on the actions of the others. - S 51 (xxvi) the people of any race for whom it is deemed necessary to make special laws. Parliament has the power to create laws to protect citizens. - S 51 (xxiv) the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States The courts can declare that a statute is invalid on the grounds that it was beyond the powers of parliament to pass such a law (ultra vires). For example, the High Court can declare a Commonwealth statute invalid on the grounds that there was no constitutional head of power under which the statute could be passed, or because the statute infringed the separation of powers doctrine. State legislation can be declared inoperative where it is in conflict with validly made Commonwealth law (s 109 of the Constitution), or it can be declared invalid where it concerns an area of exclusive Commonwealth power.

explain the role of the Crown (Governor-General, state Governors and territory Administrators), and the upper and lower houses of parliament

- The Crown is represented by Governor-General and state Governors, Territory Administrators (the upper and lower houses of parliament) - Reserve powers allow: the Governor-General to act independently without the advice of others - The prime minister usually has a seat in the lower house Governor-General - Australia is a constitutional monarchy which means our head of state (the Queen) is represented by the Governor-General appointed by the recommendation of the Prime Minister (as outlined in the Constitution). They act on the advice of the Prime Minister and Ministers but also have reserve powers which give them the ability to make decisions independently if the Government loses confidence or becomes untenable. Their powers include: providing royal assent to a bill so it can become law, appointing a Minister and issuing a writ for an election - We are a democracy - Queen (the crown), governor-general, prime minister (he chooses the GG yet the GG has more power - can even fire them) * the Governor-General belongs to the executive branch * their role is to be the representative of the Crown/the Queen and they have the highest power in Australia (more than the PM); they give Royal Assent to bills to become laws * Governor-general combines both the upper and lower house when there is disagreement on a bill. * double dissolution: dissolve both houses when there is a continuous disagreement of a bill Constitutional Monarchy (Monarch must rule within the framework set down in the constitution), Unicameral (Parliament with one house), Upper House (The house of review in a bicameral system), Lower House (House into which many Bills are first introduced; house in which most ministers have their seats), Bicameral (Parliament with two houses) - An Act of parliament can only be made by parliament - The cabinet is not a committee of parliament - The prime minister is not the leader of the opposition - Parliamentary counsel is responsible for the drafting of Bills - The prime minister chairs the federal cabinet - Most parliamentary debate on a Bill will take place at the second reading

describe the role of the High Court of Australia (HCA)

- The High court was created by the Constitution - The Constitution gave the high court power to interpret the Constitution - In the area of concurrent powers, if there is a conflict between Commonwealth and state laws, Commonwealth law will overrule State law - The wording of the Constitution can only be changed by referendum. - Laws made by the Commonwealth parliament will be applied and enforced throughout Australia - Laws made by the Queensland parliament are not applied and enforced in Victoria Exam question: Discuss the significance of a High Court case that has interpreted the Commonwealth Constitution.

analyse and apply features of the Australian Constitution, e.g. separation of powers and the importance of an independent judicial system

- The separation of powers in the Australian Constitution establishes the independence between the judiciary, legislature and executive - These powers of Government were separated by the Australian Constitution to avoid injustice and power imbalance which could arise if too much authority is held by one sector. - Residual powers are not those listed in the Constitution - A member of parliament tries to influence a decision being made by the High Court, this is a breach of the separation of powers - How does the separation of powers relate to human rights legislation in Australia: the executive applies the legislation - A government has decided to confiscate land belonging to farmers even though the High Court has determined that this action is illegal: violation of the doctrine of the separation of powers

explain the implications of the unicameral parliament in Queensland

- The title given to the person who is the representative of the Queen in the state of Queensland is the Governor - The Queensland Parliament is based on the British system of government called the Westminster system - Queensland's State Parliament is the only unicameral State Parliament in Australia Qld is unicameral - benefits (cost and time-efficient, routed in the doctrine of democracy, fewer legislators required for democracy, parliamentary inquiries (checks and balances), media (accountability), takes the interest of citizens into consideration) Problems (doesn't allow for separation of powers, lacks adequate review processes, the conflict between houses allows for multiple viewpoints to be considered and to avoid corruption, unicameral compromises division of powers)

democracy

- a government by the people through a system of representation (elected representatives), usually involving periodically held free elections (any person over the age of 18 is required to register and vote in the state/federal elections) - the government is of the people, by the people, for the people - the leader has to answer to their political party/voters, political parties have different points of view, media are free to print the truth and exercise government when there are mistakes Core values of Australian democracy: - freedom of election and being elected - freedom of assembly and political participation - freedom of speech, expression and religious belief - rule of law - basic human rights Core features: - Australian Constitution - Federation - Parliaments (Federal and State) - Government (executive) - Judicature - good governance relies upon the separation of powers and an independent judiciary, representative and responsible government and the rule of law

representative government

- power is held by the people and exercised through the efforts of representatives elected by the people - a representative democracy involves elected leaders that are entrusted to represent their constituents (or the people they represent - electorate) and vote in parliament on their behalf

responsible government

- responsible government means that the Executive Government is responsible to the Parliament (the executive must answer to the parliament) - parliamentary government means that the Executive Government comes from within the Parliament; responsible government means that the Executive Government is responsible to the Parliament - this is the central feature of a Westminster-style government where the Executive is directly answerable to the Legislature - A member of the governing party in Parliament is known as a Minister who is part of the Executive Government (Cabinet) and responsible for a Government department Government Department - A federal "department" is one of the key organisations in the federal government and has a "secretary" who leads it and serves as a member of the President's cabinet. A federal "agency", however, typically is an independent organisation or an organisation that is part of a larger department.

rule of law

1. the people, including the government, should be ruled by the law and obey it (law applies equally to everyone) 2. the law should be such that people will be able to be guided by it willingly The features of a just and equitable law: - law must fairly balance individual rights with community good - should be clear - consistent and stable (confidence/certainty, prospective) - provides an effective remedy - capable of being enforced - widely known to the community - applies equally to all

bureaucratic procedures

A bureaucracy typically refers to an organisation that is complex with multilayered systems and processes. These systems and procedures are designed to maintain uniformity and control within an organisation. A bureaucracy describes the established methods in large organisations or governments.

role of landmark court decisions in influencing legal change or law reform, e.g. Mabo v. Queensland (No. 2) (1992) 175 CLR 1; [1992] HCA 23

Case information: - Eddie Mabo never found out the result of his legal case - The Mabo case ran for 10 years. On 3 June 1992, the High Court of Australia decided that terra nullius should not have been applied to Australia - Terra nullius is a Latin term meaning: land belonging to no one - The High Court decision in Mabo is an example of common law - terra nullius means "land belonging to no-one" (meaning that Europeans were allowed to legally settle of Indigenous land) Legal issues: Human rights Culture Land possession Native Title in Australian law. Legal recognition of aboriginal rights Ownership and inheritance Traditional laws and customs Customary law inclusion in Australian Law Decision: High Court 5:2 in favour of Plaintiff (Mabo) Received law: The process of acquiring a legal system of justice transplanted from one country to another is referred to as: received law Customary law: The best example of the Australian legal system having acknowledged Aboriginal and Torres Strait Islander customary law: the recognition of traditional punishments when sentencing Aboriginal and Torres Strait Islanders (Feature of customary law: dispute resolution) Influence on legal change or law reform: - impact of the case: aboriginal and Torres strait islander people were able to claim land (native title) if they proved continuous connection to the land - Meant that from there on if Aboriginals wanted to claim ownership of the land (native title rights), they could if they a significant and continuous link to the land was proven - It was an important decision of the High Court of Australia (HCA), notable for having recognised that some Indigenous Australians have proprietary rights to land, in a legal form of ownership referred to as "native title" - Native title = the recognition that Aboriginal and Torres Strait Islander people have rights and interests to land and waters according to their traditional law and customs as set out in Australian Law (eg. to live on the area and erect shelters and structures) - The Native Title Act 1993 (Cth) was written as a consequence of the outcome of this case (Governs and recognises the rights and interests of Aboriginal and Torres Strait Islander people according to their traditional and customary law) - Aboriginals had no land rights until Mabo - took 10 years of appeals to the High Court (a great example of the separation of powers in action - the government is not immune to a lawsuit) - Today, native title is recognised in many sights of land (continuous relationship with the land has been established) - Pre-Mabo = 'terra nullius' - meaning land belonging to no one (this was annulled in Mabo) - Cultural point of view: Indigenous people have been empowered to manage their land (eg. Uluru closed to climbers 2019 at the request of Indigenous people to preserve it)

analyse and evaluate the role of courts in law-making through the interpretation of statutes and the development of legal principles through the application of the doctrine of precedent, e.g. Donoghue v. Stevenson [1932] AC 562 and Carlill v. Carbolic Smoke Ball Co [1893] 1 QB 256

Donoghue v. Stevenson: Legal issues: - Donoghue meets a friend at a cafe and consumes a drink made by Stevenson's company. Donoghue discovers the remains of a decomposed snail in the bottle, and later becomes ill and is diagnosed with severe gastroenteritis. - Donoghue takes legal action against Stevenson, but cannot claim breach of contract. Instead, Donoghue and her legal representative claim that Stevenson owed a duty of care to his consumers to take reasonable care to ensure his products are safe for human consumption. Decision: In the House of Lords on 26 May 1932 judgement established that a manufacturer of a product owed a consumer a duty of care Impact: - the assumption that one takes care of their neighbour Carlill v. Carbolic Smoke Ball Co: Legal issues: Was there a binding contract between the two parties? - Bipartisan means two-parties A contract requires notification of acceptance Did Mrs Carlill notify Carbolic of the acceptance of the offer? Did Mrs Carlill provide consideration in exchange for the 100 pounds reward? Defence argument is: There was no binding contract the words of the ad did not amount to a promise b/c: the ad was too vague to make a contract there was no limit as to time & no means of checking the use of the ball by consumers the terms are too vague to make a contract- no limit as to time a person might claim they contracted flu 10 yrs after using the remedy No contract b/c a contract requires communication of intention to accept the offer or performance of some overt act Plaintiff's argument is: the ad was an offer they were under an obligation to fulfil because it was published so it would be read and acted upon & it was not an empty boast. The promise was not vague & there was a consideration. Decision: Mrs Carlill was entitled to the reward. There was a unilateral contract comprising the offer (by advertisement) of the Carbolic Smoke Ball company) and the acceptance (by the performance of conditions stated in the offer) by Mrs Carlill. Influence on legal change or law reform: - In unilateral contracts, communication of acceptance is not expected or necessary - If there is an offer to the world at large, and that offer does not expressly or impliedly require notification of performance, of the specified condition in the offer will constitute acceptance of the offer and consideration of the promise

create responses that communicate meaning to suit the intended purpose in paragraphs and extended responses.

Extended response: Reforming the law Referendums to amend the constitution - indigenous Australians Hints are in the stimulus What can you do to add to the stimulus Response Structure: Paragraph 1 - Nature and Scope of Issue In the first paragraph, you should determine the nature (or elements) and scope (extent) of the legal issue. To do this you should: Identify the legal problem in the question/source material Use evidence to analyse the nature and scope Relate the evidence to the legal criteria Paragraph 2 - Viewpoint and Consequences A Paragraph 3 - Viewpoint and Consequences B From the source material you should: Identify viewpoints and their consequences Identify data, evidence, statistics, and other evidence which supports this viewpoint Use short quotes and pieces of evidence Refer to the source (Source 1) or the author: According to Gynther (2019) the... Some notes The viewpoints don't have to be oppositional, they just need to be different perspectives Extract evidence which is relevant to the legal issue and legal criteria Keep this short and to the point You can include other arguments/evidence, not in the source material Paragraph 4 - Present Alternative 1 - justify and discuss Paragraph 5 - Present Alternative 2 - justify and discuss Sentence 1: State the alternative Sentence 2: State the main justification, referring back to your analysis Sentence 3: Discuss the implications (possible future effects, results, or consequences) Notes The alternatives should be derived from the source material The alternatives don't have to be opposition, they could be different approaches When discussing the implications, you can use this as a chance to identify problems with the alternative you are not going to choose - then when justifying the decision you can refer back to this and justify why your decision doesn't have this problem Paragraph 6 - Make a decision, justify, and discussion Decision: Make a decision between the two alternatives Justification: Referring back to evidence in the analysis, justify why your decision is the best at resolving the human rights issue in regards of the legal criteria: Alternative A is more likely to achieve just and equitable outcomes for the refugees at Nauru because... Discussion: Discuss the possible future effects, results, or consequences Preparation Step 1: Read the Question. Step 2: Identify the legal issue. Step 3: Identify the legal criteria. Step 4: Read the stimulus material - highlight and annotate Step 5: Plan the paragraphs and use of sources Step 6: Write your response

analyse legal issues by determining the nature and scope of the issue and examining viewpoints and consequences

Identify the key features of the legal issue Explain the relevant concepts, principles, and processes Use legal terminology Nature and scope: - nature (the essence and elements of the legal issue): how can the legal issue be defined, why does it exist, what is the significance? - scope (the extent of the components of the legal issue): who is affected, what jurisdiction (federal/state/courts/police) is responsible, what is the result on stakeholders? Examining stakeholder viewpoints: - Stakeholders in the criminal justice system are those affected by the criminal justice system. This can include internal and external stakeholders. Internal stakeholders can be considered the criminal justice system itself while external stakeholders are those the criminal justice system serves and in some way affects. Identifying these stakeholders brings valuable insight into the criminal justice system.

role of landmark court decisions in influencing legal change or law reform, e.g. Wik Peoples v. Queensland (1996) 187 CLR 1; [1996] HCA 40

Legal issues: - That native title rights could co-exist with pastoral and mining leases Decision: The High Court ruled 4:3 - The Wik People won against the QLD Government Influence on legal change or law reform: - Native title supersedes pastoral lease (where the government lends land to use for a certain activity eg. farming) - Native title can only be extinguished by an act of law Pastoral releases don't overrule native title rights - Wik people = tribe - Pastoralists do not have exclusive native title rights to the land - The Native Title Act enabled First Nations people to claim connection and ownership to land while continuing to practice traditional laws and customs on land - However, public lands could be managed by pastoralists (individuals or corporations seeking grazing space for livestock or agricultural activity) who are granted pastoral leases - Pastoral lease - a legal arrangement made under Commonwealth of Australian Law, with the government's legal authority to permit pastoralists the right to use the land for agricultural, farming and livestock practices - After a 10 year battle in fighting for land rights and recognised ownership of the Mer (Murray islands), the case finally resulted in the Meriam people of the Torres Strait being granted land rights to Murray Island - This case not only granted the Meriam people access to land but also paved the way to acknowledge the people's connection to the land - The outcome of Wik People = co-existence of pastoral and mining with first Australians - Compromise (business arrangements) where Wik People could make an income by providing access points for goods and services - Benefiting the country (money) and benefiting the first nations people of the land for cultural purposes - Post-Wik case - land formally acknowledged in 2012 - In 2017, Wik peoples were able to sign an economic treaty with China - goods for cash agreement (increasing financial independence for First Australians) Precedent case of Mabo in the courts (separation of powers evident) - Improved/extended the case law of Mabo - Mabo supported/influenced the decision - Based on the outcome of Mabo (HCA), the government created legislation to 'sort it' - The Native Title Act 1993 was amended by the Howard government in 1998 in opposition to the result of the Wik case

role of landmark court decisions in influencing legal change or law reform, e.g. Dietrich v. the Queen (1992) 177 CLR 292; and [1992] HCA 57

Legal issues: Right to a fair trial Right to legal representation Access to justice Decision: High Court (5:2) - Defendant's lack of legal representation made the trial unfair. The trial was postponed. High court (5:2) Influence on legal change or law reform: The right to a fair trial/a jury/legal representation - to ensure everyone is equal before the law A person charged with a serious criminal offence should have legal representation If one does not possess the skill and comprehension to defend themselves adequately in court finds themselves without legitimate representation, as "it is reasonable to assume that their hearing, and consequently, punishment will not be fair or equitable" called the "trial without counsel" due to the lack of representation available to the defendant - subsequently resulting in an unfair hearing and trial

role of landmark court decisions in influencing legal change or law reform, e.g. The Attorney-General for the Commonwealth v 'Kevin and Jennifer' & Human Rights and Equal Opportunity Commission (2003) 172 FLR 300; [2003] FamCA 94

Legal issues: The attorney general for the Commonwealth appealed against the validity of the marriage between Kevin and Jennifer. At the time of marriage, Jennifer was a female and Kevin was a transgender male (meaning he was born female and underwent operative procedures and now identifies as a male). The issues raised throughout the case were... Should the Words 'Man' and 'Marriage' as used in the Marriage Act 1961 bear their Contemporary ordinary everyday meaning? Can the courts logically maintain that the position of post-operative transsexual persons is a matter for them but that of preoperative transsexual persons is one for Parliament? The issue of persons in the community who are prevented from marrying a person who they legitimately regarded as a person of the opposite sex, while remaining free to marry a person of their own sex. Decision: - Full Court of the Family Court of Australia (appeal) 2002 Summary: the Commonwealth's case against the validity of Kevin and Jennifer's marriage was dismissed and their marriage was legal. Influence on legal change or law reform: - For the purpose of ascertaining the validity of the marriage under Australian law, the question whether a person is a man of a woman is to be determined as "at the date of the marriage" and not at the time of birth as was in previous cases (before gay marriage was legal - had to prove that they identified as a male and not female) - Since the case, the following has occurred: * Changed the definition of marriage, Marriage act 1961 (Cth) ("the marriage act"), must be between a man and a woman * Marriage amendment commenced on December 2017 - amended "the union of 2 people to the exclusion of all others, voluntarily entered into for life"

describe the structure and function of the three levels of government in Australia

Levels of government in Australia: Local, State, Federal The Australian Legal System: * State Legal Systems: - There is a constitutional monarchy (head of states) (in the states - the queen is represented in each state by the governor, laws within each state are made by the parliament, legal disputes are resolved by the courts, and the actual political power is exercised by the chosen people of the parliament who are ministers/advisors (including the Premier who is in charge of the Ministers) * Federal Legal System: - Monarch, represented by the Governor-General, federal laws are made by the federal parliament, federal disputes decided by federal courts, and the actual political power at the national level is exercised by a selected group of people from the parliament - advisors/ministers for the governor-general (including the Prime Minister who is in charge of all the other ministers) Federal court - The Court is a superior court of record and a court of law and equity. It sits in all capital cities and elsewhere in Australia from time to time. The primary functions of the Court are to: decide disputes according to the law - promptly, courteously and effectively and, in so doing, to interpret the statutory law and develop the general law of the Commonwealth, so as to fulfil the role of a court exercising the judicial power of the Commonwealth under the Constitution. - Different aspects of government power are exercised by different people - Separation of powers - rather than have a single body/individual who exercises all power, government power is exercised by different and separate arms of government - Legislature (parliament), executive (executive government - ministers), judiciary (courts system) are supposed to remain entirely separate/independent and focus on its own responsibilities * Federal-state relations: - How do these two levels of government work together? - The relationship between the federal and state governments is regulated by the Australian constitution (sets out how the power is shared - the division of powers) - Upon federation, each of the states gave up certain powers to the federal government, but at the same time retained their individualism and legislative authority - The federal is not superior or in charge of the states, but they work together to regulate Australia - Division of powers: - Federal parliament = exclusive eg. defence - navy, army, airforce - currency, borders, taxes) - only the federal government has the legal authority to regulate these things - State parliament = residual eg. education, property, transport, crime and health - Federal and state (both = concurrent eg. s51 - taxation, marriage, banking, insurance and external relations * If the federal parliament has not legislated any of the matters listed in s51, then that remains within the regulatory authority of the states * If the state and federal parliament make laws in relation to these matters and they conflict in any way s109 provides that the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid * Federal law will override the state law to the extent of the inconsistency eg. environmental protection in Tasmania, IVF in Victoria and land ownership rights to aboriginals in QLD. - Most times the states cooperate, otherwise the matter can only be settled through litigation in the high court - Since federation, the federal parliament has passed more and more laws regarding s51 and many areas are regulated by federal rather than state law

role of landmark court decisions in influencing legal change or law reform, e.g. R v. Bayliss & Cullen (1986) 9 Qld Lawyer Reps 8; [1986]

Legal issues: The only existing legislation in regard to Abortion is state-wide. There is no federal abortion legislation which is executed across the whole country. In Queensland, abortion is legal, if the procedure is necessary to protect the mother from a serious threat of death or injury (physically and mentally). Decision: - District Court - QLD The basis for lawful abortion in Queensland currently rests on Judge McGuire's decision. Bayliss and Cullen were found not guilty on both counts Influence on legal change or law reform: - The culture of Australia changed: the majority of Australians now consistently expressed support for pregnant women to have access to abortion and the right to choose - Judge indicated that the present abortion law in Qld was uncertain and that more imperative authority, either the court of appeal or parliament, would be required to effect changes to clarify the law - It appears from the stance taken by the judge that a prosecution would fail unless the crown could prove the abortion was not performed upon the unborn child "for the preservation of the mother's life" and was not "reasonable having regard to the patient's state of mind at the time". - 32 years later for the culture of Queensland to change: *The termination of pregnancy act 2018 (QLD) came into effect and means that the termination of pregnancy is treated as a health issue rather than a criminal issue: termination can be up to 22 weeks. The Act: - Supports a woman's right to health, including reproductive health and autonomy - Provides clarity and safety for health practitioners providing terminations of pregnancy - Brings Queensland legislation in line with other Australian jurisdictions

role of landmark court decisions in influencing legal change or law reform, e.g. Al Masri v. Minister for Immigration & Multicultural and Indigenous Affairs (2002) 192 ALR 609; [2002] FCA 1009

Legal issues: There was no power to continue to detain Mr Al Masri in circumstances where there was no real likelihood or the prospect of removing him from Australia in the reasonably foreseeable future. The issue was whether the minister could hold power to detain. Decision: - Federal Court of Australia: the Applicant be released from detention - That to continue to detain a person in those circumstances breaches fundamental rights recognised by international and Australian domestic law. Influence on legal change or law reform: - A renewed focus on the key differences between aliens and citizens, namely their immigration status - The full federal court applied international human rights standards in Australia's immigration detention system - You can't detain people unnecessarily (have to meet criteria)

role of landmark court decisions in influencing legal change or law reform, e.g. Roadshow Films v. iiNet Limited (2012) 248 CLR 42; [2012] HCA 16

Legal issues: iiNet copyright infringement by failing to take responsible steps to prevent its customers from downloading and sharing infringement copies The parties argued that iiNet was not acting to prevent illegal file sharing on its network Decision: - High Court of Australia Appeal dismissed with costs Influence on legal change or law reform: - As a result of the case, copyright owners will find it hard to prove ISPs (internet service providers) are liable for their customers' copyright infringement, and legislative reform might be necessary - The liability of ISPs on the copyright of its users - did they turn a blind eye or do they have procedures put in place in an attempt to prevent copyright - ISP is not liable - leaves many questions for the scope of the issue - Respecting the artists/makers for their work (creative license - money for your hard work) - The judgement indicates strongly that the court is unlikely to impose liability on ISP's for internal piracy in the absence of further legislative action on this issue - The effect on copyright owners: * The HCA view that indifference is not an authorisation, combined with the need for quite specific infringement notices, make this a challenge for copyright owners * Judges pointed out that authorisation provisions were introduced before peer-to-peer software was available * Effect: ensure there are sufficient, reasonable steps taken to prevent copyright infringement from occurring (burden of taking precautions) * Reform: it is likely that Australia will soon adopt some form of legal solution to copyright

describe the division of powers

REC - The Division of powers must not be confused with the Separation of Powers & the importance of an independent judicial system - Constitution: (s51 - the division of powers: exclusive, concurrent and exclusive powers) and (s109 - commonwealth overrides state and territory laws if they both exist) - The division of powers refers to the constitutional allocation of powers and functions between a national Parliament and government and state parliaments and governments, which forms the basis of a federal system of government - Exclusive, Concurrent, Residual. Residual powers are what the States kept that were not taken off them when the Federation took place and when the Australian Constitution was established - An example of a reversal of this was in the 1940s referendum due to the war, where the residual power of income tax became an exclusive power. Also, (General Sales Tax 10%) GST had to be approved by State Governments because some State taxes had to be removed to make GST work - division of law-making powers between the federal and state parliaments is in dispute from time to time - anything not given to the commonwealth in the constitution belongs to the states, the commonwealth cannot legislate on these powers - Constitution allocation of powers and functions between a national Parliament and government and state parliaments and governments - Forms the basis of a federal system of government - It is the "splitting up" of law-making responsibilities between the commonwealth parliaments and state parliaments - specific powers = outlined in constitution s51 (residual is not considered in the constitution) * Exclusive - the power of the federal government, held only by the commonwealth (specific) (areas only the commonwealth can make laws for and not the states - areas of national concern eg. immigration, defence, external affairs, postal, export/import, national security and currency) * Concurrent - overlapping power, both the commonwealth and the states/territories (specific) (law-making powers are shared with the states - both commonwealth and states have authority to legislate in these areas eg. trade, employment (s109 of the constitution states that when state law is introduced and conflicts the commonwealth law - commonwealth will override) eg. marriage, taxation, banking, insurance and external relations * Residual - the power of the states (non-specific) (law-making powers not found in the constitution, the states retained a set of law-making powers where each state can legislate based on the needs of their states eg. education, environmental issues, criminal laws, health/hospital, tourism, transport, highways, emergency services - bushfire debate of Scott Morrison and state Ministers for Fire and Emergency Services - relates to the rule of law *checks and balances* - legal solutions/recommendation - Royal Commission (legal response - helps shape legislation and future decisions) to investigate/address the issue - national action plan in place for state collaboration of Premiers eg. coronavirus - advice from Ministers of health) - these are the bulk of law-making powers as it was established the importance of the states remaining the powers they already possessed - s51 of the constitution - lists the legislative powers granted to federal parliament (commonwealth legislation is limited to the granted in the constitution, powers not included in s51 are residual powers and remain the domain of the states) The division of powers refers to the constitutional allocation of powers and functions between a national Parliament and government and state parliaments and governments, which forms the basis of a federal system of government. Exclusive, Concurrent, Residual. Residual powers are what the States kept that were not taken off them when the Federation took place and when the Australian Constitution was established. An example of a reversal of this was in the 1940s referendum due to the war, where the residual power of income tax became an exclusive power. Also, (General Sales Tax 10%) GST had to be approved by State Governments because some State taxes had to be removed to make GST work. - the division of powers allocates/outlines the responsibilities ("splitting" up of power) between Federal and State government (exclusive - federal, concurrent - both, residual - state) - the division of powers can only be changed 3 ways (referendum - s128 but few of these succeed, high court interpretation - constitutional disputes are settled by the HCA - they cannot change the wording but change the meaning, voluntary transfer from states to commonwealth)

describe concepts of representative and responsible government

Representative government: - The commitment to the representative government was embedded in the Constitution, which provides at s7 and 24 that both houses of the Federal Parliament are to be 'directly chosen by the people'. - The Constitution also embraces the democratic commitment to 'one person, one vote', by providing in s 8 and 30 that in choosing members of parliament 'each elector shall vote only once. Why is voting important? - Underpins the idea of a democracy - Establishes that Australia has a representative government (those elected into government and parliament have been chosen as a reflection of the majority of votes by the people) - All people over the age of 18 should have the right to vote - voting is compulsory in Australia - fines are issued if you don't vote over the age of 18 - Voting is an opportunity to have your say and help shape Queensland - A healthy democracy makes sure that all members of the community have equal access to the political process. Australia is a democratic nation where governments are elected by popular vote * The commitment to the representative government was embedded in the Constitution, which provides at ss7 and 24 that both houses of the Federal Parliament are to be 'directly chosen by the people' * The Constitution also embraces the democratic commitment to 'one person, one vote', by providing in ss8 and 30 that in choosing members of parliament 'each elector shall vote only once' Representative government: - The Australian electoral commission - federal Qld electoral commission - Some regions do not have voting centres as they are too remote/isolated - postal votes only - Mobile polling - nursing homes, places where people are inhibited to go out and vote - Early polling - if you know you're not available on voting day (for covid they have opened it up for longer) - Candidates - Have to take the count seriously (electronic v manual voting - which do we trust more - benefits/disadvantages - open to corruption/hacking - or open to human error) - reform (advantage/disadvantage) - Every state produce the ballots of the electorates in its state - 151 seats in the house of reps and 76 in the senate In Queensland: - Preferential voting (from 1-?) - Have to look at the bigger picture - might like the candidate but not the party - In Australia it is compulsory to vote, you otherwise get fined - Every vote counts (if you do a donkey vote its bad) - they can ask for a recount - If you don't vote, why do you have the right to claim things from the government eg. child benefits Representative government: * Government for the people - democratically elected using preferential voting * 1967 referendum: - 90% vote yes - benefit all aboriginal people (decided as people according to the law) - There was an assimilation law to make young black children more like us - They were not counted as people according to the law and couldn't vote, and yet they were still policed by the government - Democratic right - constitutional change to improve rights - They were already able to vote and were classified as citizens but the wording of the constitution said otherwise - but there was enough legislation to overlook aboriginal people (to basically say no) - s127 - aboriginal people shouldn't be counted in population survey (In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted) - S51 - to people of any race other than the aboriginal people in any state - Generations of aboriginal people suffered - these stories are passed down by the elders - That referendum created change - knock-on effect which caused MABO (cultural shift in acknowledging that sacred sights are important to indigenous Australians) - If it were to be changed again (indigenous people to be recognised by the referendum) what would happen? Constitution change - Mabo (native title) - Wik People (cohabitation of pastoral lands) - 8/44 passed - 1967 was the most successful - the campaign was a community-based campaign (fairness/justice) - not ran by the government Make a summary comment - what is the just and what is the fair? What is just and fair about changing the constitution? - Rule of law - Fair - double majority referendum, equality before the law (not discrimination) - Just - access to justice - right to assemble (community): holding the government accountable - The constitution must change with the times (as culture changes the law should keep up) - Acknowledging that the government of the day were wrong by excluding first Australians in the constitution or enacting inappropriate laws (no one was saying it but all were thinking it) - A step towards equality eg. Acknowledging first - Australians vote + therefore respect - not a second class citizen - Rectify the disadvantage that was created and in the constitution - Giving first Australians a voice in order to contribute - they have become empowered eg. Recognition of ceremonial sites - Understanding that the constitution must change in certain areas due to the change in culture and what is morally right - Culture expectations/society not mandatory to constitution + therefore needs rewriting Just like (similar to the circumstances when) how legislation was amended to change the marriage act to meet the expectation of society - The constitution is quite broad to allow the parliament to make laws to support the constitution and legislative branch to be held accountable - Write cultural wrongs Representative: A system in which people vote for candidates to represent them in parliament and make laws on their behalf Responsible government: Responsible: - The Government is responsible to the Parliament to ensure that the government does not abuse its power - the government must retain the support of the majority of members of the house of representatives to stay in power - The government have to answer to parliament (Labour have to answer to parliament as a whole - all the other representatives that were voted in - Liberal) - The government relates to a majority of people who were elected - however, they usually don't make up a majority of the house - otherwise, any laws they wanted could get through - As Queensland is unicameral - a majority in the parliament is dangerous

describe and explain the relationship of specialist courts and tribunals with state and federal jurisdictions, e.g. the Family Court, the Children's Court, Murri Court, Administrative Appeals Tribunal (AAT), Queensland Civil and Administrative Tribunal (QCAT)

Role of the courts: - The courts (Judicial arm of government) play an important role in keeping governments and Ministers accountable for their decisions and act as a 'check' against unlawful or unconstitutional actions - Judicial power gives the courts the ability to a) interpret legislation and b) apply legislation - Separation of powers ensures that courts are free (independent and impartial) to make decisions against the government - to ensure that the Minister's maintain integrity and responsibility - Judges are appointed by the Governor-General (acting on the advice of the Prime Minister and the Cabinet, not elected and can't be removed if they hand down a decision unpopular with the government Family Court: - The Family Court of Australia, through its specialist judges and staff, assists Australians to resolve their most complex legal family disputes. The Family Court is a superior court of record established by Parliament in 1975 under Chapter 3 of the Constitution and deals with more complex matters. - Legislation attempts to control future activity, so legislation is often unable to cover or predict every possible scenario that may arise. A specific case may therefore require a court to decide an Act's meaning in that specific case. The court's interpretation is then read with the Act to make up the law on that topic. For example, the law on families is not contained completely in the Family Law Act 1975 (Cth). It is found in a combination of the Act and decisions of the Family Court made on matters controlled by the Act. * The Family Court is a highly specialised court that assists Australians to resolve complex legal family disputes. An Australian Court which has reflected and incorporated broad and rapid social, moral and cultural changes, as the family unit is considered to be the central and fundamental institution of society (needed a court to specialise in family disputes - sympathetically and helpfully), parenting cases involving child welfare. - The Commonwealth of Australia Constitution Act 1901 (Cth) s77 gives the commonwealth the power to define the jurisdiction of any federal court - Family Law Act 1975 (Cth) (FLA), which created the Family Court of Australia s21 - Federal because commonwealth legislation governs what the family law court deals with (family law act 1975 (Cth) and introduced the concept of no-fault divorce) - All family breakdown issues (divorce, annulment), property, all child access (residence, schooling, child support) - Independent lawyers - help the court decide what's best for the kids, remains neutral - Disputes about family breakdown (children residence) - Children can have legal representation - Court orders - school, religion, - Amendment/divorce - property splits - Marriage - true according to legislation - Knows about the child's situation before making an order (a serious legal decision which must be followed by the mum, dad and child about where and how much time they can spend with each other) - The judge will make a decision if the parents can't agree - Underlying legal principle: what is in the best interest of the child when it comes to disputes involving children Children's Court: - Magistrates Court matters involving juveniles are dealt with in a special court known as Children's Court. The Children's Court of Queensland (CCQ) is a special form of DistrictCourt that deals with all juveniles who commit serious criminal offences. - Matters involving children are heard by either a special Magistrates Court (Children's Court) or a special form of the District Court (Children's Court of Queensland) depending on the seriousness - Criminal Code Act 1899 (Qld) - Youth Justice Act 1992 (Qld) - Qld state only. Focus on children who have committed offences (criminal code). The type of offence is linked to the court hierarchy ( it could be appealed to district or supreme if needed) - youth justice act Murri Court: - The application of customary law (Aboriginal and Torres Strait Islander peoples' traditions and rules - a way of life governed by a system of beliefs) to the hearing and sentencing of indigenous defendants. It is a specialist court situated in the Magistrates Court of Qld, not available for serious indictable offences. - Aboriginal and Torres Strait Islander Communities (Justice, Land and other matters) Act 1984 (Qld) * The application of customary law (Aboriginal and Torres Strait Islander peoples' traditions and rules - a way of life governed by a system of beliefs) to the hearing and sentencing of indigenous defendants. It is a specialist court situated in the Magistrates Court of Qld, not available for serious indictable offences. The magistrate is assisted by Elders or Respected Persons from the community to help the magistrate understand the defendant's personal, economic, social and cultural circumstances. - This court links them to a number of cultural and support services to help them address the underlying reasons for their offending and facilitate improvements for their physical and mental health - Murri Court is a state-based issue - QLD - The person has pleaded guilty - Respects aboriginal culture - Has elders and respected persons in the court - Helps them stop offending - Face the murri court elders - get linked to support services to make changes in your life - Culture + support services (to stop offending) - working with elders - Haven't had the same access to education, life without abuse (alcohol, drug), difficulty to read English - Magistrates take hard work to change into consideration (access to justice - this is what fairness and equitability is about) - Plead guilty - connected to support services - go to meetings/management - the sentenced? - Murri courts for adults and children (courts are acknowledging the children and adults must be treated differently - treated differently due to life experience) - Have to: identify as an aboriginal person, it is in the magistrate's court, you are on bail or granted bail, you have pleaded guilty or are going to, the offence you committed is one which the magistrate court can hear (summary offence) - You want to go and agree to participate - cooperation - 13 locations in QLD - Qld court that specialises in indigenous community matters. A plea of guilt needed to have been made for this to be used AAT: - The Administrative Appeals Tribunal is not like a French administrative court. It has no general jurisdiction to decide disputes generally involving public functions. Its role is to review and remake government decisions affecting citizens and corporations. - Ministers, departments and agencies make administrative decisions every day. To ensure transparency and accountability, these executive decisions (eg. visa applications, social security, taxation, citizenships, corporations and financial services regulation) can be reviewed by the judicial arm. - This process is by the AAT which was established by the Administrative Appeals Tribunal Act 1975 (Cth) - Commonwealth has the power to create this type of court and hold government departments accountable - Commonwealth (deals with constitution/federal stuff) - Reviews decisions that government ministers/agencies/departments have made (child support, family assistance, paid parental leave and social security, visas, NDIS, taxation, workers compensation, veterans - Affirm, change, set aside decisions (you can apply for a review - access to justice - you have the opportunity to present your case to the AAT member - it is less formal) - Reviews administrative decisions made under Commonwealth laws eg. Workers compensation, migration visa, bankruptcy - Have to provide avenues for justice for appeals QCAT: - The Queensland Civil and Administrative Tribunal (QCAT) is an independent, accessible tribunal that efficiently resolves disputes on a range of matters. The tribunal's purpose is to provide a quick, inexpensive avenue to resolve disputes between parties and make decisions. * Represents a significant structural reform to Queensland's justice system. The tribunal has brought together 18 tribunals and 23 jurisdictions to become more efficient, the purpose is to provide an accessible, quick, informal and inexpensive way to resolve disputes. - Jurisdiction: civil disputes <$25,000 - Queensland Civil and Administrative Tribunal Act 2009 (Qld) - Civil and state-based - Deals with minor civil disputes under 25000 eg. Unpaid debts, motor vehicles, rental property, guardianship, diving fences, tree disputes, anti-discrimination, some issues regarding children - Governed by QLD courts and tribunals act - Administrative - makes legal decisions for the client (qcat can appoint a guardian (makes a decision regarding your life) or administrator if you have impaired capacity

explain and analyse the strengths and weaknesses of parliament as a law-making body

Strengths of parliament in law-making: - Parliament can investigate the whole topic and make a comprehensive set of laws. - Parliament provides an arena for debate. - Parliament can delegate its power to make a law to expert bodies. - Parliament can change the law as the need arises. - Parliament can make law in the future - Royal Assent is necessary if the Bill is a finance bill - Parliament is democratically elected. This means that, in theory, its members reflect the feelings, attitudes and values of the community. Members eventually face re-election, and this is an incentive to ensure that they continue to reflect the community's views and do not act in an unaccountable manner. Weaknesses: - Members of parliament might be more influenced by political considerations, rather than the community good, when considering what attitude to adopt towards a Bill. - The process of passing a Bill is time-consuming. - It is not always possible to change the law in accordance with changing values in society or to reach a compromise where there are conflicting values in society.

role of landmark court decisions in influencing legal change or law reform, e.g. New South Wales v. Commonwealth (2006) 229 CLR 1; [2006] HCA 52

Section 51(xx) of the Constitution (not going to be on the test but important to know) Legal issues: Was the WorkChoices legislation a valid exercise of power by the Commonwealth? Decision: High Court of Australia 5:2 ruled in in favour of the legislation Arguments ~ ~ it was limited to regulation of corporations' external relationships; ~ it was limited to laws in which the nature of the corporation was significant; and/or ~ it was limited by the existence of the conciliation and arbitration power. Influence on legal change or law reform: - New South Wales v Commonwealth is a landmark decision of the High Court of Australia, which held that the federal government's WorkChoices legislation was a valid exercise of constitutional power - Deals with industrial disputes (employee v employer) - Explanation of a constitutional corporation - NSW v Commonwealth (also called WorkChoices case) is a landmark decision of the HCA, which held that the federal government's WorkChoices legislation was a valid exercise of constitutional power - The majority found that the constitution's corporations power was capable of sustaining the legislative framework, while the conciliation and arbitration and territories powers were also seen as supporting parts of the law - Furthermore, the majority also held that the legislation permissibly limited state powers and did not interfere with state constitutions or functioning (every state has its own constitution - the "rulebook" for how you run the country/state)

evaluate the legal situation using the analysis (above) by presenting alternatives to make a decision or propose recommendations and justifying using legal criteria and discussing implications

The Legal Criteria could be whether: - The laws adequately balance competing interests - The law is effective in protecting human rights - The law is just and equitable (Equitable refers to something characterised by fairness, impartiality, or lack of bias) - The law is even and impartial

explain the function of parliament as a law-making body and describe the legislative process

The function of Parliament in making laws: Legislative process: Stages that a Bill must go through to become an effective Act: 1 - initiation 2 - first reading 3 - second reading speech 4 - second reading debate 5 - committee stage 6 - adoption 7 - third reading 8 - other house 9 - Royal assent 10 - proclamation and publication in the Government Gazette

analyse and evaluate the accountability of government, e.g. The Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (Fitzgerald Inquiry 1987-1989)

What was the Fitzgerald Inquiry (1987 - 1989) and how did it impact change? - Channel 7 Video: - Illegal casinos/gambling and brothels from Brisbane to Gold Coast protected by Queensland police - Phil Dickie - detected/reported police who organised crime - Jack Herbert found to be the middleman as police confessed - Police Commissioner Terry Lewis found to be corrupt - first to be Knighted and to go to jail Joh Bjelke-Petersen the Premier of Queensland when the report was published, seen to be 'turning a blind eye' - ABC News Article: - Known as "the Bagman", Herbert collected more than $3 million in protection money that allowed illegal gambling and prostitution to flourish in Queensland as part of a racket known as "the Joke" - Herbert would become the Fitzgerald Inquiry's star witness, telling all in exchange for immunity from prosecution - The Joke was a vast system of corruption and protection involving illegal gambling and brothels in Queensland - The dirty money flowed to the police, who in exchange for regular cash payments turned a blind eye to crime (nearly $60,000 a month in protection money to police) - Herbert was estimated to have received more than $3 million in payments - In 1897, The Moonlight State program was broadcast on Four Corners, revealing that police were being bribed to protect corrupt police in Queensland and premier Bill Gunn called a judicial inquiry - The Fitzgerald Inquiry would run for two years and hear from more than 300 witnesses - Evidence from the inquiry would lead to four government ministers and police commissioner Terry Lewis being jailed - Other police would go to prison, while senior officers — including the assistant commissioner Graeme Parker — would give evidence in exchange for indemnity from prosecution - The Fitzgerald Inquiry would also lead to the establishment of Queensland's first anti-corruption body - The Conversation Article and Video: The Fitzgerald Inquiry: - The Fitzgerald Inquiry (officially the Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct) was a significant inquiry which started in 1987 which exposed entrenched police and government corruption - The idea of systemic corruption within the police system in Australia - The inquiry's findings transformed Queensland's political landscape more than any event in the past six decades -It established important procedural precedents for investigating official police wrongdoing, including granting security to witnesses for providing crucial evidence, and holding public hearings with open media access for transparency to society - It was instigated by Queensland's police minister and deputy premier, Bill Gunn in 1987 following media reports of barely restrained criminal activity in Brisbane under the protection of police officers - Earlier Queensland investigations into illicit activities resulted in little change to police practices and were overlooked by the government - Gunn wanted an inquiry to root out the problem of corruption in police ranks - Taking longer than expected, Gunn eventually appointed barrister and judge Gerald "Tony" Fitzgerald QC to head a Commission of Inquiry - Referred to colloquially as the "Fitzgerald Inquiry", it helped lay bare a secretive political establishment and a sordid network of police corruption - The inquiry's hearings lasted almost two years (startling evidence from 339 witnesses broadcast regularly to an incredulous public, several senior police figures - including disgraced Police Commissioner Terry Lewis - and three state government ministers were found to have engaged in corrupt conduct and were later jailed) - Fitzgerald's broad and immediate impact: The Fitzgerald report has been described as a "blueprint for accountability" in Queensland, which had been a lacking principle - The report was damning of not only a defective police leadership, but also a self-serving political culture of shady dealings and unaccountability. - It made dozens of recommendations intended, in Fitzgerald's words, "to bring about improved [administrative] structures and systems" which criminal justice oversight and electoral law reform - Wayne Goss was elected premier in December 1989, and his government was quick to begin electoral reform and a public administration overhaul - Major recommendations of the inquiry report had been legislated and instigated: *An Electoral and Administrative Review Commission (EARC) *Criminal Justice Commission (CJC) *Freedom of information (FOI) provisions *MPs' pecuniary interest registers *The right to peaceful public assembly *Dismantling the state's system of electoral malapportionment Impact today: - Critics point to periodic regressions or executive reluctance to maintain the reform process - Inconsistently applied whistleblower protections and impediments to FOI access and transparency failings under governments on both sides of politics, have at times dulled the shine on the post-Fitzgerald integrity framework (Queensland politicians' departures from a commitment to reform and accountability) - Denial of corruption is no longer a viable option, 'acceptance of cash in brown paper bags' - The Crime and Corruption Commission is held up as a model for corruption watchdog agencies, potentially including a future federal ICAC (Independent Commission Against Corruption) - The taint of official corruption exposed by the inquiry, and the public's faith in accountability reforms embodied in Fitzgerald's report also partly explain why the LNP party has struggled to regain and hold office over the past three decades in Queensland - The accountability agenda is one that leaders on both sides of Queensland politics have pursued before and should commit to upholding still - Reporter Chris Masters video: stated crooked cops were comforted by the fact that the public would most likely believe them over the criminals, Queensland Bureau of Criminal Intelligence were tracing/tapping him, chased by police, Jack Herbet was found to be the conduit/'middleman', who took bribe money from criminal syndicates and funnelling it back into senior police - it was a system that was not only tolerated but assisted to the top of the police and government - Terry Lewis Interview Video: - Qld Police Commissioner Terry Lewis found to have corruption under his 11 years of leadership - He denies being corrupt, didn't know what was happening - Some argue that he should have known, that if he had been doing his job and were effective this wouldn't have happened Additional Notes: *Only in the last 20 years has prostitution been 'semi-legalised' - restrictions apply/became regulated (limited number working in a particular brothel - human rights issues) *Gambling in Qld was illegal at the time (1996 - legalised) - Qld Premier - Joh Bjelke-Petersen (denied knowledge/involvement) - Deputy Qld Premier - Bill Gun - Minister of Police - Russ Hinze - Police Commissioner - Terry Lewis - Assistant Police Commissioner - Graham Parker - Licencing branch detective - Harry Burgess "dirty harry" - Police officers eg. Jack herbert was the middleman - bribes, sexual favours - criminal syndicates, gambling, prostitution, drugs, protection money - Chris Masters - ignited the Fitzgerald Inquiry by starting to investigate and release information about systemic corruption in the police *All about government accountability *Federal police knew about the corruption (works independently from the state police force - they knew something had to be done but they couldn't cross-jurisdiction unless it was a constitutional issue - had to allow natural justice to take place) - Commonwealth v States (the division of powers) - criminal law is a residual power *There was energy for reform in Qld - than other states started to do what QLD did. Fitzgerald inquiry: - Significant and beneficial reform in Qld for policing (they work for the public, not for the criminals) - they have to be more accountable to citizens (taxpayers) - Scientific structure, integrity, retaining police culture + ethics - Public losing faith in their ability to do their job (not disclosing information) = more likely to step down - Government accountability (indicating that not every cop is corrupt) - Elections - donors giving money to politicians for their election campaign - Not just Terry Lewis - it was systemic issues from his predecessor, not just his fault - He denied that he was corrupt - 11 years of being Commissioner and under his leadership things went wrong (he turned a blind eye - didn't have measures in place for checks and balances on the use of power) - the police commissioner and deputy are now held more accountable - Importance: the other states followed How the Queensland government was made to be accountable as a consequence of the Fitzgerald Inquiry: - 2 year investigation of long term political corruption and abuse of power (police commissioner is granted by the minister of police) * Governance of isolation to a more transparent government/accountable and separation of powers (parliamentary committees were they discuss then publish documents) - A number of government office holders were prosecuted - Terry Lewis (equality before the law - rule of law - police can be held accountable) - Established the electoral and administrative review commission (EARC) to reframe boundaries and restore public confidence in the electoral system * Anti-corruption bodies established across the country and different sectors of Queensland government (eg. CJC - aims to restore public confidence, work with police and public sector to investigate organised crime and public misconduct - p308 Fitzgerald inquiry Laws on public assembly * are examples for law reform in QLD What happened in Queensland regarding the Inquiry, and how this had an impact in other jurisdictions around Australia: - Other states and territories started to introduce similar reforms as an attitude of transparency and accountability became the expectation - Regular elections, not corrupt, public confidence in the government - Voting is a commonwealth power - has to be equal procedures for all voters (mandatory voting - everyone has a say) Discuss your opinion of Terry Lewis's attitdue, and give reasons for your opinion: - No remorse except for the effect it has on people he knows - Blames predecessor rather than acknowledging what happen under his 11 years - Denies being corrupt or knowing about what was going on - ignorant and incompetent How the separation of powers can be of value regarding a situation like the one Fitzgerald investigated: - We believe that the separation of powers should exist - corrupt government officials (state level jurisdiction) can be prosecuted - The separation ensures that each area can be held accountable - No one is above the law and thus, police and government ministers involved in corruption face the same criminal charges and consequences as other ordinary citizens in a court of law - p126 of Inquiry discusses parliamentary secrecy and behaviour. - The judiciary being separate from the government allows for an independent decision. - Different to division of powers - which was slightly corrupted by the case Explain how government accountability gives citizens access to justice: - Striking the balance between protecting civil rights and providing sufficient police powers to combat sophisticated crime - Queensland is different - the committee system is absolutely essential to keep accountability and qld parliament is unicameral and there is no due process - Queensland had a lack of freedom of information legislation which limited the availability of public information on the workings of government (freedom of information act 1992)

Australian Constitution

a document that describes the rules that govern Australia, defines the structure of government and its citizens' rights - The British Parliament passed The Commonwealth of Australia Constitution Act in 1900 - The Australian Constitution is best defined as a set of rules by which Australia is run - The Australian Constitution come into effect 1st January 1901 - The Australian Constitution separately addresses the powers of 3 groups - the Australian Parliament, the Executive Government and the Judiciary - Key features of the Australian Constitution - an Australian Parliament responsible for national lawmaking, 6 state governments responsible for state matters, the High Court of Australia is the final court of appeal - The Australian Constitution does not act as a Bill of Rights - The Australian Constitution guarantees the right to a trial by jury for federal offences in Section 80; the right to privacy, free speech and education is not - The Constitution describes how the Federal Parliament works, what it can make laws about and how it shares its power with the states - Sometimes there are disagreements over the issues relating to the Constitution - the High Court of Australia is responsible for providing the official interpretation of the Constitution and deciding on these disagreements - Indeed, the Constitution is the fundamental law of Australia binding everybody including the Commonwealth Parliament and the Parliament of each State - Accordingly, even an Act passed by a Parliament is invalid if it is contrary to the Constitution. Constitution: - (established in 1900), federation occurred in 1901 - A set of rules that binds people - how the nation is governed (specifies the powers, responsibility and roles of governing bodies) - You can change the constitution through a referendum (the majority of Australian voters in a majority of states *double majority* must vote yes) - only 8/44 have been successful - The constitution is a set of rules by which a state or country is governed (Commonwealth of Australia Constitution Act 1900) - It is a legal document which sets out the basic legal and legislative principles and aspects of the government in Australia - Originally passed as part by British Parliament in 1900 - Formed an agreement with the former self-governing colonies of the six states to form one nation - It is the framework for our democracy (continues to guide how Australia is governed and how laws are made Key Features: - Made up of 8 chapters and 128 sections, setting out the principles and aspects of the Australian government - It is the 'rulebook' which outlines the legal and political system by which Australia is governed - It doesn't have a Bill or Charter of Rights, however, some human rights are mentioned - Establishes a bicameral parliament - Defines the responsibilities of Commonwealth/Federal Government - Governments of states/territories are responsible for all matters not assigned to the Commonwealth (anything not outlined in the Constitution is the residual power of the states) - established our legislature (parliament), executive government (Prime Minister and ministers) - referred to as the executive, the judiciary (courts) Functions: - Recognises the existence of 6 colonies (now states) and 2 territories - Creates a new central government (Federal government/commonwealth) - Regulates relations between the federal government and the 6 states (who is in charge of certain matters - the division of powers) - Establishes free trade and commerce between states - Guarantees some basic rights for citizens

referendum

a general vote by the electorate on a single political question that has been referred to them for a direct decision - The process by which Australians can change the Constitution is called a Referendum - A referendum is only successful when it is agreed to by a majority of voters in a majority of states (double majority) - Since 1901, 44 referendum questions have been asked and only 8 have passed.

describe and explain the relationship between legislation and case law

common law: In Australia, this attempts to provide some legal protection of human rights (case law/judge-made law) statute law: responsible for making a Federal statute - the Australian Parliament (statute law is made by Parliament) - Delegated legislation (A regulation made by a state Minister of Education; a meeting of the Governor-General in Council; Labour and Industry Regulations (1965) Vic; a Gold Coast city council law forbidding burning off; a meeting of Logan City Council; an ordinance concerning the Australian Atlantic Territory; Road Safety Regulations 1990 made by the Victorian Roads Corporation) - Legislation (Acts Interpretation Act 1901 (Cwlth); Royal Assent; an appropriation Bill; a committee of the whole house; a second reading debate) - Judge-made law (R v Archdall (1928) 41 CLR 128; ratio decidendi; Grant v Australian Knitting Mills (1936) AC 85; a decision of the full bench of the High Court)

analyse and apply features of the Australian Constitution, e.g. role of s 51 of the Australian Constitution, and residual powers with reference to current and/or landmark cases, e.g. the Tasmanian Dam Case (Commonwealth v. Tasmania (1983) 158 CLR 1)

s51 - Powers of the Parliament - Legislative powers of the parliament s 51 xxvi - Legislative powers of parliament Tasmanian Dam Case - Legal issue: Was the World Heritage Act valid? Interpreting the constitution Breach of Balance of powers created by the constitution. Does the Commonwealth have preference over the State? Do executive powers override residual powers? Decision: - Commonwealth legitimately prevented the construction of the dam. Tasmania had not been deprived of any property. - The High Court ruled that the World Heritage Act was valid. The High Court of Australia interpreted s(51)(xxix) in the broadest sense; external affairs did apply to international agreements and treaties and therefore the commonwealth could intervene. - This was to prevent the destruction of things that were only found in the Franklin River, such as World Heritage pine wood, had it been flooded. Influence on legal change or law reform: - The ecosystem/environment/world heritage - You must give consideration to the role of s51 of the constitution with this case - The power of the commonwealth will increase at the expense of the states - Implications: the government when legislating treaty to which Australia is a signatory, they can legislate in areas of power as well as concurrent and executive - Impact: this upsets the balance of power and erodes the powers of the states because originally the states were the only ones to use residual powers - Balance of powers is maintained as the concurrent, residual and executive powers awarded under s51 of the constitution relating to foreign corporations and external affairs - This case was important as it stopped the gas government from poor treatment of the environment - Example - if there is a contradiction (s109) - The world heritage properties conservation act 1983 (Cth) - The commonwealth made a decision on the basis of the country - not just Tasmania, in passing the world heritage property conservation act - S51 - Important: the HCA is upholding commonwealth legislation, regardless of what states are trying to argue

unicameral and bicameral

terms referring to the number of chambers in a legislature (one house or two houses) - Bicameral means that the parliament has two houses - Not all states have bicameral parliaments (Qld has unicameral - one house) * Unicameral - legislative body with one chamber (Queensland at the state level - 'legislative assembly') * the upper house of review (legislative council) was abolished and the legislative assembly remained * Bicameral - two chambers (Australian Parliament - 'House of representatives' and 'the Senate') House of Representatives - The House of Representatives is the lower house of the bicameral Parliament of Australia, the upper house being the Senate. (151 members 'the people's house') Major functions: represent the interests of their constituents (the members of their electorates) and introduce, debate then pass or reject proposed laws Senate - The upper house of the Federal Parliament (76 senators 'the house of review'). Major functions: each state is represented by an equal number of members to protect the less populated states from being dominated, the Senate reviews Bills sent from the house of representatives (cannot amend but can ask the lower house to change it) then either accept or reject on a majority rule, and the Senate makes sure that the Ministers of the Government and their departments are made accountable to the parliament and the public for their actions (accountability process)

joint sitting

the convening of members of the Senate and House of Representatives sitting together as a single legislative body Governor-general combines both the upper and lower house when there is disagreement on a bill.