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Criminal

law in
action
U N I T
1
ISBN: 9780521171021
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Ashdown, Wilson, Bates, Walker, Bates 2010 Cambridge University Press
2 E SSE NT I A L V CE L E GA L ST UDI E S UNI T S 1 & 2 2
ND
E DI T I ON
Area of
study 1
acts of parliament
anarchy
appeal
backbenchers
balance of probabilities
beyond reasonable doubt
bicameral system
bill
Cabinet
civil law
Commonwealth Parliament
concurrent powers
Constitution
criminal law
Crown
defendant
delegated legislation
electorates
enabling act
exclusive powers
Executive Council
freedom
government
government departments
House of Representatives
injunction
inquiry
jurisdiction
law reform bodies
law-making body
legal rules
legislation
Legislative Assembly
Legislative Council
K
E
Y

T
E
R
M
S
OUTCOME 1
In this part, you will learn to explain the
need for effective laws, and describe
the main sources and types of law in
society. You will draw on the following
key knowledge and key skills to
achieve this outcome:
K E Y K N O WL E D G E
This knowledge includes:
the difference between legal and
non-legal rules
the need for laws
characteristics of an effective law
the distinction between criminal law
and civil law
an overview of the role and
characteristics of parliament and
subordinate authorities in law-
making.
K E Y S K I L L S
These skills include the ability to:
dene key legal terminology and use
it appropriately
classify rules as either legal or non-
legal
consider the effectiveness of
selected laws
identify legal problems that might be
addressed by criminal or civil law
describe the role of parliament
and subordinate authorities in law-
making.
ISBN: 9780521171021
Photocopying is restricted under law and this material must not be transferred to another party
Ashdown, Wilson, Bates, Walker, Bates 2010 Cambridge University Press
3 L AW I N SOCI E T Y
Law in
society
RELEVANT LAW
I MP O R TA N T L E G I S L AT I O N
Commonwealth of Australia
Constitution Act 1900 (UK)
Crimes Act 1958 (Vic)
Summary Offences and Control of
Weapons Act Amendment Act 2009
(Vic)
Summary Offences Act 1966 (Vic)
Control of Weapons Act 1990 (Vic)
Housing Amendment (Registrable
Persons) Act 2009 (NSW)
Housing Act 2001 (NSW)
World Heritage (Property Conservation)
Act 1983 (Cth)
Marriage Act 1961 (Cth)
S I G N I F I C A N T C A S E S
Commonwealth v Tasmania [1983]
HCA 21 (Tasmanian Dam case)
R v Sharpe [2005] VSC 276 (5 August
2005)
ODD LAW
In Ohio, USA, no one may be arrested
on a Sunday or on the fourth of July.
S 2331.12 General Assembly: 100. Bill
Number: House Bill 1. Effective Date:
10/01/1953.
No person shall be arrested during
a sitting of the Senate or House of
Representatives, within the hall where
such session is being held, or in any
court of justice, during the sitting of such
court, or on Sunday, or on the fourth day
of July.
P A R T
1
local councils
ministers
non-legal rules
norms
order
parliamentary committees
plaintiff
president
pressure groups
prosecute
regulatory impact
statement
remedy
residual powers
Royal Assent
Royal Commission
sanction
Scrutiny of Acts and
Regulations Committee
Senate
society
speaker
specic powers
state
state parliament
statutes
statutory authority
subordinate authorities
sue
ultra vires
Westminster system
ISBN: 9780521171021
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4 E SSE NT I A L V CE L E GA L ST UDI E S UNI T S 1 & 2 2
ND
E DI T I ON
LEGAL AND NON-LEGAL RULES
In society, there are legal rules and non-legal
rules. Legal rules apply to everyone in a
society and can be enforced, whereas a non-
legal rule will apply to select groups within
society. A society, or community, is made up
of a group of individuals living together. It can
be as small as a group of residences living in a
certain area such as the City of Melbourne, or
can be as large as a state (e.g. Victoria or New
South Wales), a country or can even extend to
the international community.
Legal and non-legal rules are determined
by the people. The people are usually
represented by a government who act on
their behalf. There are a number of factors
which will affect a legal or non-legal rule.
This includes the moral values and customs
of a society. All individuals in a society do
not necessarily agree with legal and non-legal
rules, but the majority of a society should agree
with them. Legal and non-legal rules may also
contain rights of groups and individuals. For
example, a legal right that is currently found
in our legal rules is the right to silence when
being questioned by police.
Legal rules
Legal rules are laws that apply to all
individuals in society. Law is about people.
Although people do not think about the
law in the ordinary course of daily life, it is
continuously in operation, inuencing their
lives and the decisions they make.
The law aims to identify and dene the
many relationships in society that people have
with each other. It then endeavours to establish
rules to regulate these social interactions and
their existence. The law therefore identies the
many human, social and economic needs of a
society and attempts to frame and implement
legal rules to meet these needs. The more
civilised a society becomes, and the greater
the industrial, commercial, technological and
scientic progress it makes, the more laws it
needs to regulate for the new possibilities that
will continue to emerge.
Laws are enforceable by the state. When
someone breaches a law they are punished
for the breach. The state can be a state of
Australia, such as Victoria, Tasmania or New
South Wales, or can be the state of Australia or
even another country.
The laws we are concerned with may be
referred to as the laws of the state the rules
of law recognised and enforced by the state.
Criminal law is usually made by law-making
bodies, such as parliament, and is enforced by
people and organisations such as the police
and the courts.
Criminal law in Australia can be made
for the whole of Australia (known as federal
criminal law), or it can be made specically
for a state such as Victoria (known as state
criminal law). Criminal law can also be
made for other states and the international
community. If a criminal law is broken, a
person can receive a sanction such as an on-
the-spot ne or be taken to court. Criminal
law aims to protect society.
society a group
of individuals living
together
state those who make
and enforce laws are
referred to as a state
legal rules laws that
apply to all individuals
in society, made by a
law-making body
criminal law made
by law-making bodies
(such as parliament);
applies to the whole
of a state and is
enforced by people
and organisations
such as the police and
the courts; its aim is to
protect society
The difference between
legal and non-legal rules 1.1
ISBN: 9780521171021
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Ashdown, Wilson, Bates, Walker, Bates 2010 Cambridge University Press
5 L AW I N SOCI E T Y
In order for an individual or group to
be bound by a law, the law must have
jurisdiction. This means that those who
create and enforce the laws must have
been granted the correct powers to do
so. As discussed below, the Australian
Commonwealth and State Parliaments are
granted jurisdiction to create laws for Australia
by the Constitution.
Civil law involves the relationship
between individuals and/or groups and the
protection of individual rights. Civil law
applies to the whole of Victoria, and if a
persons rights have been infringed, the injured
party may take the action to court (that is, sue
the person) and receive a remedy (usually
in the form of monetary compensation).
Criminal law and civil law are different from
non-legal rules (such as the rules of clubs,
rules of social etiquette, family rules, school
rules and rules of religion) in that the laws are
binding on each and every person by virtue
of our membership of a politically organised
state. Both civil law and criminal law oversee
the rights and responsibilities of individuals.
Non-legal rules
Non-legal rules usually apply to specic
groups or individuals where the members
of the group agree to be bound by the rules.
These rules are not enforced by the state, but
are usually enforced by those who create them.
If a non-legal rule is broken, a person cannot
be taken to court to receive a punishment.
For example, your household may have rules
concerning what time you must be home of
a night, who takes the garbage out and who
stacks and unloads the dishwasher. If a person
living in your house breaks one of these rules,
the police would not come around to your
house with their sirens blazing and arrest
anybody.
There could however, be non-legal
consequences for breaking one of these non-
legal rules, such as being grounded. This is
because non-legal rules are made by groups or
individuals and vary between these groups or
individuals in society.
jurisdiction the types
of cases a court can
hear
civil law involves the
relationship between
individuals and groups
and the protection
of individual rights;
applies to the whole
of a state and if a
persons rights have
been infringed, the
person may sue in a
court and receive a
remedy
remedy a form of
compensation for
someone who has had
their rights infringed/
breached
non-legal rules
usually apply to
specic groups or
individuals (if broken
a person cannot be
taken to court)
Figure 1.1
Legal rules are either
criminal law or civil
law
Legal rules
Criminal law Civil law
ISBN: 9780521171021
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Ashdown, Wilson, Bates, Walker, Bates 2010 Cambridge University Press
6 E SSE NT I A L V CE L E GA L ST UDI E S UNI T S 1 & 2 2
ND
E DI T I ON
Figure 1.2
Activities governed
by legal rules
ACTI VI TY 1. 1
Identify the laws that govern the activities shown in the images below.
ISBN: 9780521171021
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Ashdown, Wilson, Bates, Walker, Bates 2010 Cambridge University Press
7 L AW I N SOCI E T Y
ACTI VI TY 1. 2
Add three further examples to each of the following non-legal rules.
Household rules
Inform your parents of where you are going when you go out
School rules
Students must attend school in full school uniform
Social etiquette
You must not push in, but rather go to the end of a queue
Friendship rules
You should not lie to each other
AFL rules
You cannot make a high tackle on another player
Figure 1.3
Non-legal rule a
high tackle
ISBN: 9780521171021
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Ashdown, Wilson, Bates, Walker, Bates 2010 Cambridge University Press
8 E SSE NT I A L V CE L E GA L ST UDI E S UNI T S 1 & 2 2
ND
E DI T I ON
ESSENTI AL QUESTI ONS
1 What are legal rules?
2 Who do legal rules apply to?
3 What is the difference between criminal
law and civil law?
4 Who makes criminal laws?
5 What is the result if a person breaks
criminal law?
law-making body
an institution or group
who makes laws for
the whole of the state;
the most prominent
law-making body is
parliament
sanction a
punishment given by a
magistrate or judge in
a criminal case
SUMMARY Differences between legal and non-legal rules
Legal rules
to be obeyed by the whole of society
made by a law-making body
enforced through the courts
consequence of breaching is a prescribed sanction imposed by the courts
Non-legal rules
to be obeyed by specic individuals or groups
made by individuals or groups
enforced by the leaders of a group of individuals
consequence of breaching is at the discretion of the leader of a group
Similarities between non-legal and legal rules
provide a code of what is acceptable behaviour
acknowledge the rights and responsibilities of individuals
restrict certain actions of individuals
provide a consequence if the rule is breached
6 What is the result if a person infringes the
rights of another under civil law?
7 What are non-legal rules?
8 Who do non-legal rules apply to?
9 Explain two similarities and two
differences between legal and non-legal
rules.
ACTI VI TY 1. 3
Draw one poster that depicts both a legal rule and a non-legal rule being broken.
For each rule, clearly label the type of legal rule and non-legal rule, and state the
following:
1 Why it is a legal rule or a non-legal rule?
2 Who made the rule?
3 Explain who the rule applies to.
4 Identify who enforces the rule.
5 What is the consequence of breaking the rule?
ISBN: 9780521171021
Photocopying is restricted under law and this material must not be transferred to another party
Ashdown, Wilson, Bates, Walker, Bates 2010 Cambridge University Press
9 L AW I N SOCI E T Y
WHY DO WE NEED LAWS?
The best way of understanding the nature
of law and the legal system is to examine the
reasons for laws in our society. The central task
of a legal system is to combine and delicately
balance two conicting ideals freedom and
order.
THE LAW CONTROLS SOCIAL
RELATIONS AND BEHAVIOUR
To satisfy our basic needs and to exploit the
full potential of human existence, people have
always sought to live in company or society
with others. The basis of this existence, by its
very nature, must involve social interaction.
To ensure the society functions effectively and
survives it is necessary to establish norms of
acceptable behaviour. The state may impose
sanctions or punishments on those who fail to
comply with these rules.
Although these norms are generally
accepted by members of the society and are
included in the legal order, social interaction
will inevitably lead to disputes because of the
conicting interests of individuals and groups.
It is difcult for groups of individuals to live in
perfect harmony.
The objective of any legal system will be
to provide answers to everyday problems that
arise. The solutions to such problems must
accord with the objectives that are judged by
the community to be socially desirable. The
law tells people what they must do or refrain
from doing. Without laws, there would be no
code of what is acceptable behaviour. Without
laws, anarchy and chaos would occur in
society.
freedom the ability of
individuals to do and
think as they want
order controls placed
on an individuals
behaviour to ensure
co-operation in society
norms guidelines on
what is considered
to be appropriate
behaviour in the
community
anarchy a state of
disorder
The need for laws 1.2
Figure 1.4
Reasons for law
To protect individuals
and their rights
To protect society
To provide a code of
acceptable behaviour
To facilitate
social change
To provide institutions
and procedures to
settle disputes
To control social
relations and
behaviour
To reect
community values
REASONS FOR LAW
ISBN: 9780521171021
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Ashdown, Wilson, Bates, Walker, Bates 2010 Cambridge University Press
10 E SSE NT I A L V CE L E GA L ST UDI E S UNI T S 1 & 2 2
ND
E DI T I ON
Sydney Morning Herald
16 December 2009
A crackdown on drunkenness and
violence will continue in Victoria
with new laws brought in today,
including extra powers for police to
strip search people for weapons.
Police can also issue $234 on-
the-spot nes for people who refuse
to leave pubs and clubs when asked.
The new laws come after the
nationally-coordinated Operation
Unite police crackdown on alcohol-
related violence across Australia and
New Zealand last weekend.
Under the new search laws,
police will be able to declare
designated areas for searches if they
have a history of violence involving
weapons, or they believe such an
incident is about to take place.
They will be able to stop and
search a person without a warrant
in the areas, such as train stations or
city blocks.
The areas will be designated for
a 12-hour period only and, by law,
must be advertised in a government
gazette and newspaper seven days in
advance.
Deputy Commissioner Kieran
Walshe hopes to have the rst
designated areas in place early in the
New Year.
He said the increased powers
were important because there had
been a signicant rise in weapons
crime in the past year.
Victoria Police statistics from
200809 show that robberies
involving knives increased by 9.4 per
cent in the last year. This is simply
unacceptable, Mr Walshe said.
We are concerned with peoples
rights and respect them but at the
end of the day we are also concerned
with the communitys rights to be
safe in the city and elsewhere, he
said.
Victoria police get extra search powers
Source: www.smh.com.au/national/victoria-police-get-
extra-search-powers-20091216-kwnh.html. Note: the Acts
discussed in this media link are the Summary Offences and
Control of Weapons Act Amendment Act 2009 (Vic), which
changes the Summary Offences Act 1966 (Vic) and the
Control of Weapons Act 1990 (Vic)
1 Provide two reasons why it is necessary to have police
enforce laws in society.
2 Why does social interaction between groups and
individuals lead to disputes?
3 What role does the law play in controlling social
behaviour?
ISBN: 9780521171021
Photocopying is restricted under law and this material must not be transferred to another party
Ashdown, Wilson, Bates, Walker, Bates 2010 Cambridge University Press
11 L AW I N SOCI E T Y
THE LAW PROVIDES A CODE OF
ACCEPTABLE BEHAVIOUR
The law tells us what we can do and what
we cannot do. It sets guidelines on what
is acceptable and unacceptable behaviour.
These guidelines reect the rights and
responsibilities of individuals in society. The
law provides for sanctions or punishments if
individuals breach this code
of acceptable behaviour.
THE LAW PROTECTS
INDIVIDUALS AND
THEIR RIGHTS
The main focus of the law
is to protect the rights of
individuals in society. In
order to feel safe and secure,
whether at home or in the
wider community, laws are
needed to protect our rights.
If a crime is committed
against a person, the police
will investigate and the
offender will be prosecuted
through the courts and
receive a punishment.
Under civil law, if an individuals rights
have been infringed, the courts may provide
compensation to the individual for the damage
they have suffered.
THE LAW REFLECTS
COMMUNITY VALUES
Each society has a set of values and beliefs
that are important to the individuals of that
society. Laws are needed to protect the
values of the community and to reect the
societys beliefs of what is acceptable and
unacceptable. To most societies, an important
value is the importance of human life; as a
result any actions that harm or interfere with
the quality of human life would be against the
law. As society changes, it is important that
the law also changes to reect changing values
and attitudes in the community. However,
there are areas of the law where there are
conicting values within
the community. Some
examples include voluntary
euthanasia, human cloning
and same-sex marriages.
There has been recent
controversial discussions
concerning the banning
of smoking in private
residences due to the impact
of smoking on children and
pets who share a house with
smokers.
THE LAW PROTECTS
SOCIETY
Laws are needed to protect
society as a whole from the
prospect of danger, harm
and fear. Laws ensure societys safety. The
provision of imprisonment under the criminal
law protects society by removing the offender
from the community for a designated period
of time. Penalties imposed by the courts can
act as a deterrent to the wider community
in that the consequences of committing a
criminal offence are widely known and people
will refrain from committing offences in the
future, resulting in the protection of society.
WHAT S YOUR VI EW?
Laws are implemented to protect
the rights of individuals.
However, there are conicting
attitudes within society towards
these lawsfor example,
towards:
changes in road laws
same-sex marriage
banning of smoking in cars
with children inside, and
euthanasia.
What other examples of laws
can you think of where there are
conicting attitudes towards the
law?
Discuss your views on the
difculties in balancing the rights
and responsibilities of individuals.
ISBN: 9780521171021
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12 E SSE NT I A L V CE L E GA L ST UDI E S UNI T S 1 & 2 2
ND
E DI T I ON
24 September 2009
Notorious Queensland paedophile
Dennis Ferguson will be getting an
eviction notice as a Bill allowing the
New South Wales Government to
relocate him is set to become law.
Under the new powers passed
through the Upper House, NSW
Police Commissioner can force
anyone on the Child Protection
Register to be moved if public safety
is at risk.
Only four Greens MPs voted
against the measure. The NSW
Government says the laws will
protect Ferguson, his neighbours
and help keep the peace.
NSW Housing Minister David
Borger says they are necessary
because of the extraordinary
situation created by Fergusons
public housing tenancy.
He has told Parliament he is
worried very bad things would
have happened if Ferguson was
allowed to stay.
Relocating people on the Child
Protection Register is for their own
safety, just as much as it is for the
safety of their neighbours, he said.
It is also about keeping peace in
our communities.
NSW Premier Nathan Rees says
the measure is unusual.
It addresses an unusual set of
circumstances. We hope it doesnt
happen again, he said.
The legal changes have been
welcomed by one of Fergusons
neighbours, Sean Killgallon.
I think everyones come to their
senses and realised its a reality that
this is for our children. Its as simple
as that, he said.
No-one took the law into their
own hands. The vigilante that did
turn up had nothing to do with our
cause and it was always about the
cause of our innocent children.
But a supporter of Ferguson,
Brett Collins, says it is appalling.
To toss a man out of his house
because some people are angry
about him because hes unpopular is
outrageous, he said.
Mr Collins says Ferguson knows
of other convicted paedophiles who
are living in public housing.
Mr Borger refuses to divulge
how many there are and, despite
having a law that targets them as
public safety risks, says he will not
be warning communities when they
move in.
If you have a system that
essentially posts the address of every
single paedophile they will simply go
to ground. They will become lost to
the police and they will represent a
far greater threat to communities,
he said.
Ferguson law keeps everyone safe
Source: www.abc.net.au/news/stories/2009/09/23/2694673.htm. Note: the legislation
discussed in this media clip are the Housing Amendment (Registrable Persons) Bill
2009, which was passed and became the Housing Amendment (Registrable Persons)
Act 2009 (NSW). This Act altered the Housing Act 2001 (NSW).
1 What change in the law is the NSW Government
introducing?
2 Why has the NSW Government introduced the law?
3 What is the counter argument to the introduction of this
law?
4 Why do we need to change criminal laws?
5 Do you think that this law should have been changed?
Why or why not?
ISBN: 9780521171021
Photocopying is restricted under law and this material must not be transferred to another party
Ashdown, Wilson, Bates, Walker, Bates 2010 Cambridge University Press
13 L AW I N SOCI E T Y
THE LAW FACILITATES
SOCIAL CHANGE
The relationship between law and society and
the way in which they interact is central to any
study of a legal system. The social, economic,
political and environmental conditions under
which people live are constantly changing.
These changes are brought about by changes
in the values and attitudes of people over
time, the needs of society, and advances
in technology, science and medicine. New
technology is taking the law into areas it has
never traversed before, as well as forcing a
reconsideration of old concepts.
THE LAW PROVIDES THE
INSTITUTIONS AND PROCEDURES
TO SETTLE DISPUTES
One of the more important functions of any
legal system is to provide the institutions,
personnel, procedures and processes for
settling conicts or disputes that arise in
society between individuals, between the
individual and the state and between states.
Examples of such institutions are the courts,
tribunals, conciliation and arbitration boards
and mediation centres. The objective of all
legal systems would be to ensure that:
a individuals are aware of their rights and
have access to the system
b problems/disputes are dealt with quickly
and efciently
c the process involved is not too expensive
d the system handles problems consistently
e all persons are given a fair hearing
f there is a right of appeal to a higher
authority
g disputes can be dealt with in a
geographically convenient location
h such disputes are heard by appropriate
bodies who would be prepared to process
each case with due consideration and
formality, and
i trials are conducted according to
recognised procedures.
appeal an application
by a party to a legal
case to have the
matter reheard by a
higher court
WHAT S YOUR VI EW?
The criminal justice system should never
be used to try and solve a problem that only
relates to one individual. It should only be
used to address wider issues.
As a class, discuss whether or not you
agree with this statement.
ACTI VI TY 1. 4
As a result of changes in society and changing values over time, a number of laws
have undergone change for example, legalisation of brothels and the tolerance and
acceptance of swearing on television.
Working in small groups, make a list of changes in the law that have occurred and
the reasons why they have changed.
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14 E SSE NT I A L V CE L E GA L ST UDI E S UNI T S 1 & 2 2
ND
E DI T I ON
ESSENTI AL QUESTI ONS
1 The central task of the legal system is to
balance two conicting ideals. What are
these two ideals?
2 How do laws control social relations and
behaviour?
3 The law tells us what we can and what
we cannot do. Give an example of a
law that tells us what we can do, and an
example of a law that tells us we cannot
do something.
4 In what way does the law protect
individuals and their rights?
5 Explain how the law reects community
values.
6 Give three examples of changes in society
leading to changes in the law.
7 What are the objectives of the legal system
in providing institutions and processes to
settle disputes?
8 Rank the seven main reasons why we
need laws in order of importance in your
opinion. Give reasons for your answer.
ACTI VI TY 1. 5
List the most likely reasons for the existence of the following laws.
Law
Road rules for pedestrians
Speed limits in residential zones
Laws concerning assault
Laws concerning indecent exposure
Laws concerning SPAM emails
Drink-driving laws
Laws covering workplace safety
Anti-discrimination laws
Figure 1.5
Why is it illegal
to drive while
intoxicated?
ISBN: 9780521171021
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Ashdown, Wilson, Bates, Walker, Bates 2010 Cambridge University Press
15 L AW I N SOCI E T Y
WHAT FACTORS DETERMINE
THE EFFECTIVENESS OF LAW?
How well particular laws perform these
functions will be determined by many factors.
PUBLIC AWARENESS,
UNDERSTANDING AND
ACCEPTANCE OF THE LAW
The effective operation of a given law is very
much dependent upon our law-makers clearly
informing the public as to the existence of the
law and ensuring that they understand its
meaning, scope and operation. There is never
any guarantee that it will have the full support
of all members of the community, but, if the
law has been carefully considered, hopefully it
will reect the current thinking and attitudes
of the majority of people. If a law is at odds with
prevailing attitudes it may result in outright
deance or active disobedience of the law.
Without doubt, a law that is ill-conceived, or
poorly publicised or promoted will have little
chance of successfully achieving its objectives.
Characteristics of
an effective law 1.3
Figure 1.6
What makes an
effective law?
Clarity and drafting
of the law
Public awareness,
understanding and
acceptance of the law
Enforcement
of the law
WHAT MAKES AN
EFFECTIVE LAW?
Consistency
in the law
Stability
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16 E SSE NT I A L V CE L E GA L ST UDI E S UNI T S 1 & 2 2
ND
E DI T I ON
ENFORCEMENT OF THE LAW
Although a law may be well publicised,
understood and have general support, it
may still fail to operate effectively if little or
no attempt is made to enforce the law with
appropriate sanctions. The operation of a law
may be less effective if:
a law enforcing agencies ignore breaches of
the law
b it is difcult to effectively detect violations
of the law
c violations are not reported by the public
d it is difcult to gather proof of the offence
e the problem can be solved by some
alternate means without resort to the law,
or
f the sanctions imposed are inappropriate.
CLARITY AND DRAFTING
OF THE LAW
One of the most difcult tasks facing our
law-makers is to ensure that all laws are well
drafted. If the purpose and/or wording of a
law is clear and unambiguous, people affected
by its provisions will regulate their conduct
accordingly. However, any doubt as to the
meaning, scope and operation of a law can
lead to uncertainty and confusion and the law
will be less effective. Such uncertainty may
have to be tested in the courts to clarify and/
or interpret:
a the general intention, spirit or aims of the
law
b particular words, phrases or sections of
the law, and
c whether or not a particular factual
situation falls within the ambit of the law.
Laws that allow for too many exceptions, or
loopholes, or are too complex for people to
understand and follow will be less effective
in their day-to-day impact and operation.
The problem facing law-makers is that they
are presented with two conicting ideals. The
rst is to frame the law to cater for all the
possibilities, but also make it simple enough
for the majority of people to understand.
ACTI VI TY 1. 6
State whether or not you think the following laws would be effective. Give reasons for
your answers.
1 VicRoads has introduced a new road rule stating that all dark coloured cars must
have light reecting strips on them. Car dealers have been informed of this law
but the general public has not.
2 A law banning all smoking and drinking.
ACTI VI TY 1. 7
State whether or not you think the following laws would be effective. Give reasons for
your answers.
1 All people who do not work shift work must not watch TV after 11 p.m.
2 The punishment for speeding is one hour of unpaid community work for each
kilometre over the speed limit the driver was travelling.
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17 L AW I N SOCI E T Y
CONSISTENCY IN THE LAW
Given the vast volume of laws in operation in
our society, our law-makers are faced with the
additional problem of ensuring that laws:
a are consistent with each other
b do not affect the efcient operation of
other laws, and
c maintain a relative scale of seriousness
in their operation and in the sanctions
imposed for violation.
Such inconsistencies will inevitably lead to a
reduction in the effectiveness of a law as the
community and courts endeavour to resolve
the conict that has arisen.
ACTI VI TY 1. 8
State whether or not you think the following laws would be effective. Give reasons for
your answers.
1 All gardens must be maintained and look respectable from the street.
2 Suitable clothing must be worn in public at all times.
Website of the Victorian Department of Premier and Cabinet:
www.ocpc.vic.gov.au
LEGAL
L I NKS

ACTI VI TY 1. 9
ACTI VI TY 1. 10
Visit the website of the Victorian Department of Premier and Cabinet at
www.ocpc.vic.gov.au and then answer the following questions:
1 Dene the role of the Ofce of the Chief Parliamentary Counsel.
2 Compile a list of characteristics needed for a parliamentary draftsperson.
State whether or not you think the following laws would be effective. Give reasons for
your answers.
1 The Victorian Government has created two laws: one stating that P-plate drivers
are not allowed to drive between the hours of 9 p.m. and 5 a.m., and another
stating that P-plate drivers can drive at any time for work purposes.
2 One law states that new liquor licences will no longer be granted to operate after
2 a.m. Another law states that all liquor licences will be able to be reviewed, even
if those licences are to operate after 2 a.m.
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18 E SSE NT I A L V CE L E GA L ST UDI E S UNI T S 1 & 2 2
ND
E DI T I ON
CHANGES AND STABILITY
IN THE LAW
For the sake of certainty, some degree of
stability is required in the laws. However, the
laws of any legal system, like other activities
of life, need to be kept in line with current
community attitudes and practices. To ensure
that our laws reect what is happening in
society, all legal systems must have an effective
method for changing and updating laws. The
sheer volume of the law and its complexity
makes the job of updating it onerous. Rapid
and continual changes in the law, however,
can lead to uncertainty and confusion as to
the current state of the law on a particular
issue. Nowhere is this more obvious than in
the limited ability of the law to keep pace with
developments in technology. The publication
and promotion of new laws can be a costly
and time-consuming process, so that if a law
is changed several times over a short period of
time public condence and knowledge of the
law may be adversely affected. It is therefore
important for law-makers to try and foresee
future changes that may occur when creating
and updating laws.
ESSENTI AL QUESTI ONS
1 Public awareness, understanding and
acceptance of the law is a characteristic
of an effective law. Select one law that
you believe meets this characteristic and
explain why.
2 What can hinder enforcement of laws?
3 What conict do lawmakers face in
ensuring there is clarity in the drafting of
the law?
4 What needs to be considered by the law-
makers to ensure laws are consistent?
5 Give an example of changes in the law
that have occurred due to changes in
technology.
ACTI VI TY 1. 11
State whether or not you think the laws in the following ctional scenarios would be
effective. Give reasons for your answers.
1 On 1 January 2010, the Victorian Parliament created a law banning the use of
electronic powers cars. On 1 March 2010, the Victorian Parliament created a law
allowing the use of electronic powered cars and providing a subsidy for those
who purchased one.
2 Prior to 2009, there were no restrictions on the number of passengers a P-plate
driver could carry. In 2009, a law was created stating that a P-plate driver could
only carry one passenger.
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19 L AW I N SOCI E T Y
Emily Stewart
27 January 2010
The 80-year-old man dubbed
Victorias oldest hoon has been
given a suspended jail sentence for
driving up to 60 kilometres per hour
over the speed limit.
Police told the Horsham
Magistrates Court they pursued
Ronald Allan Bells vehicle for 23
kilometres at Murra Warra, near
Horsham in western Victoria, last
year.
They say he was driving at 160
kph in a 100 kph zone.
Counsel for the defence said Bell
fell asleep at the wheel and did not
see the police car pursuing him.
Magistrate Richard Pitthouse
said it was the most nonsensical
submission he had ever heard.
He called Bell a danger to the
community and imposed a 14-day
suspended prison sentence and a
$3000 ne.
Magistrate Pitthouse also
cancelled Bells licence for ve years.
Jesse Wray-McCann
Hastings Leader
30 November 2009
The Chelsea mother of a pregnant
teenager killed in a high-speed car
crash has called for judges to impose
harsher penalties on reckless drivers.
Sarah Booth, 17, was killed
instantly when the car she was
travelling in smashed into a tree and
burst into ames in Carrum Downs
on 31 December 2006.
The driver, 27-year-old Nathan
Unwin, was being pursued by police
and had drugs in his system when he
lost control of the car.
He was sentenced to nine years
imprisonment, with a minimum
of six, for culpable driving causing
death.
The maximum jail sentence is 20
years.
Sarahs mother, Donna Dinsdale,
said she expected Unwin to get a
much longer jail term.
This man is young enough to
get out with plenty of time to start
his life over again, Ms Dinsdale
said. But my daughter doesnt
get to start her life over...and I will
always be left wondering what she
would look like today.
Ms Dinsdale has asked the
director of public prosecutions to
appeal the sentence.
Sarahs friend Britney Taylor
described the sentence as sickening.
Why should he be given the gift
of life with such a small sentence
when he has taken the life of
someone who meant so much to us,
Ms Taylor said.
Road Trauma Support Services
John Downes said a sense of injustice
often made the grieving process
harder to overcome.
It adds to a persons distress and
it certainly complicates the grieving
process, he said.
Meaghan Shaw, spokeswoman
for Attorney-General Rob Hulls,
said the State Government would
not comment on the case.
Suspended sentence for oldest hoon
Mums anger at sentence for
Carrum Downs crash driver
Source: www.abc.net.au/news/stories/2010/01/27/2802502.htm
Source: http://hastings-leader.whereilive.com.au/news/story/anger-at-sentence-for-carrum-downs-crash-driver/
1 What laws have been breached in each article?
2 With reference to the above two articles, explain why laws concerning roads are needed.
3 After reading the above two articles, do you believe that road laws and laws concerning
speeding and culpable driving are effective? Give reasons for your answer, referring to
the characteristics of an effective law.
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20 E SSE NT I A L V CE L E GA L ST UDI E S UNI T S 1 & 2 2
ND
E DI T I ON
WHAT S YOUR VI EW?
There has been community concern at the number of road accidents
and fatalities involving P-plate drivers. In 2008, the length of a
probationary licence was extended from three years to four years. This
consists of one year as a P1 Probationary Driver followed by three
years as a P2 Probationary Driver. While a P1 Probationary Driver,
drivers are not to use mobile phones, and are not to carry more than
one passenger between the ages of 16 and 21. Another suggestion
to curb problems with P-plater accidents is to have a curfew on
P-plate drivers. The curfew would make P-plate drivers adhere to strict
guidelines. Statistics show that from midnight to dawn, P-plate drivers
are more accident-prone. They also are at a greater risk in the rst six
months of obtaining their licence. The risk is caused by distractions and
responding to peer pressure. It is believed a curfew would save lives.
Working in small groups, discuss the following:
1 List ve benets and ve disadvantages of this curfew.
2 What suggestions would you make to reduce the road accidents
and fatalities involving P-plate drivers?
3 Is this an example of an effective law?
4 Are there any difculties in implementing and enforcing this curfew?
Hint: the following information from VicRoads may be of assistance:
www.arrivealive.vic.gov.au/downloads/Youngdriver_discussion/YDS_
v10_web.pdf
Figure 1.7
P-platers on the road
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21 L AW I N SOCI E T Y
The two main areas of law that you will study
this year are criminal law and civil law.
Broadly speaking, the distinction between
criminal and civil law depends on the legal
proceedings that may follow from the act. If
the act is a crime, then criminal proceedings
can be taken. A person will be prosecuted and
the case heard in the criminal courts, which
may result in conviction and punishment of
the accused (who, for example, may have to
pay a ne, be imprisoned or give back to the
community through a Community Based
Order). If the act is a civil wrong, the person
bringing the action (the plaintiff) will sue the
wrongdoer (the defendant) in a civil court in
an attempt to gain a remedy (which may be
damages or an order stopping the defendant
from continuing the conduct complained
about).
CRIMINAL LAW
Criminal law has a number of characteristics,
including:
Criminal law is concerned with the
protection of society. A crime is an offence
against the society as a whole, and one
which is punishable by the state.
The law provides the avenue for the state
to take legal action against an accused,
that is, to prosecute the offender in a court
of law to obtain some form of sanction or
punishment.
Criminal actions involve crimes against a
person, the state and/or against property.
The police and/or the Director of Public
Prosecutions decide to prosecute the
offender in court and they are known as the
Crown, the Director of Public Prosecutions
(DPP) or the state, whereas the offender is
known as the accused.
The Crown or the state must prove their case
beyond reasonable doubt. This means
that if any other reasonable conclusion
besides proving the criminal charges can be
made from the evidence, there is reasonable
doubt. If there is any doubt as to the guilt
of the accused, a not guilty verdict must be
reached.
The aim of criminal law is to protect the
community and to provide a sanction to
the offender if he or she is found guilty by
a court of law.
CIVIL LAW
Civil law has a number of characteristics. It is
concerned with the enforcement of individual
rights. Everyone has rights and obligations.
If a persons rights are infringed or someone
fails to full an obligation, the law provides
an avenue to take legal action against another
individual, that is, the ability to sue that
person in a court of law to obtain some form
of remedy, or if the right has not yet been
infringed, to stop this from occurring.
Civil actions usually involve the law of
contract and the law of torts.
The distinction between
criminal law and civil law 1.4
accused the person
against who the
criminal action is being
taken
prosecute when the
Crown or state take
action against the
offender in a court of
law
Crown the party who
commences a criminal
action in a court
of law against the
offender; if the alleged
crime is against a
law of Victoria, the
criminal action is
usually commenced
by the Ofce of Public
Prosecutions who
act for the Director of
Public Prosecutions,
and if the alleged
crime is against a law
of the Commonwealth
(a federal criminal
law) then the criminal
action is usually
commenced by the
Commonwealth
Director of Public
Prosecutions
beyond reasonable
doubt the standard
of proof required in
a criminal case for a
person to be found
guilty
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22 E SSE NT I A L V CE L E GA L ST UDI E S UNI T S 1 & 2 2
ND
E DI T I ON
The person who decides to sue another
and begins the action is known as the plaintiff.
The person who is being sued is referred to as
the defendant.
Liability is decided on the balance of
probabilities. The court will decide which
case is more probable: the case of the plaintiff
or the case of the defendant.
The aim of civil law is to compensate
a person who has suffered some kind of
damage through the action (or non-action) of
another. The law aims to restore a successful
plaintiff to the position he or she was in prior
to the occurrence of the civil offence. This
compensation is usually in the form of an
award of money known as damages.
An important difference between criminal
law and civil law is the consequence of the
action. The consequence of a civil case can
be a remedy or an injunction. Both are
designed to restore the plaintiff back to the
position they held prior to the infringement
of their rights. The consequence of a criminal
action is some form of punishment. Sanctions
or punishments include imprisonment and/or
nes.
Some actions can give rise to both a criminal
and civil action. For example, if a person is
assaulted, the offender faces prosecution by
the police and punishment (a criminal action);
in addition the victim may sue the offender
for injuries suffered (a civil action). Similarly,
in the case of a motor vehicle accident,
criminal charges may be laid by police where
there is evidence of criminal wrongdoing. Out
of the same accident, a civil action may also
arise where one party may sue the other for
negligence, hoping to recover damages.
ESSENTI AL QUESTI ONS
1 Dene the term civil law.
2 Give two examples of civil law.
3 In relation to civil law, dene the terms
plaintiff and defendant.
4 What is the aim of civil law?
5 Dene the term criminal law.
6 Give two examples of criminal law.
sue when the injured
party takes action
against the defendant
in a court of law for
a remedy for the
damage they have
suffered
plaintiff an individual
who decides to sue
because their rights
have been infringed,
the injured party who
commences a civil
action, the person
whose rights have
been infringed and
who is bringing an
action against the
defendant
defendant the
person answering
the allegations of the
plaintiff, the person
who is being sued in a
civil action, the person
whom it is alleged
has infringed the
rights of the plaintiff
(also known as a
respondent)
balance of
probabilities the
standard of proof
required in a civil case;
to be successful the
court must consider
one side (either
the plaintiff or the
defendant) to be more
probable than the
other side
injunction an order
of a court stating that
an individual must do
or refrain from doing
something
Table 1.1 Key words for criminal
and civil actions
CRI MI NAL ACT I ONS CI V I L ACT I ONS
accused/offender
crime/offence
punishment/sanction
prosecute
crown
charge
guilty/conviction
beyond reasonable doubt
plaintiff
defendant
respondent
sue
infringe
right
remedy
injunction
balance of
probabilities
damages
7 In relation to criminal law, dene the
terms Crown and accused.
8 What is the aim of criminal law?
9 Explain the difference between a remedy
and a sanction.
10 Explain how an action can be an example
of both criminal and civil law.
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23 L AW I N SOCI E T Y
ACTI VI TY 1. 12
Outline the differences between civil and criminal law in the following areas:
Burden of proof
Person commencing
proceedings
Person who proceedings are
brought against
Possible remedies
Reason for the legal action
Case Space
Read the two case studies below
and answer the questions that
follow. One case study is in relation
to criminal law and the other case
study is in relation to civil law.
Melbourne man murders wife
and daughter
R v Sharpe [2005] VSC 276
(5 August 2005)
A Melbourne man has faced the
Supreme Court today, on charges of
murdering his wife and baby daughter.
The man has pleaded guilty to both
counts of murder.
The womans family in New Zealand
rst alerted police attention when they
lodged an ofcial concern that they
had not heard from their daughter
for a period of two weeks. This was
totally out of character, as they were a
very close family.
A police investigation commenced
immediately. When questioned
by police, the man denied
any knowledge of his wifes
disappearance and suggested that
she had left him for another man. He
even sent emails from his wife to her
family and had owers delivered to
them in his wifes name, in an attempt
to lead the police off track.
Under intense police interrogation
over a period of weeks, the man
eventually broke down and confessed
to the murders of his wife and baby
daughter. He had stabbed them to
death and then had cut their bodies
up into pieces with a chainsaw and
thrown them out in the garbage.
An extensive search of a local tip,
months after the murders, uncovered
the two bodies.
1 Select two words from the
case that indicates this is a
criminal action.
2 What is the aim of criminal
law?
3 Who brought the action in
this case?
4 If you were the judge in this
case, what sanction would
you impose?
5 Explain how this case differs
from a civil case.
Figure 1.8
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24 E SSE NT I A L V CE L E GA L ST UDI E S UNI T S 1 & 2 2
ND
E DI T I ON
Case Space
Melbourne couple sue
cruise ship for $35 000
A young couple from Melbourne did
not have the honeymoon they had
anticipated. In proceedings in the
Melbourne Magistrates Court, the
couple are suing a cruise ship owner
for $35 000.
Joanna and Ben boarded the cruise
ship for a 10-day honeymoon through
the South Pacic. On the rst night
after eating dinner, both became
violently ill with food poisoning. They
were attended to by the cruise ships
doctor but spent the rest of the trip
in bed with severe vomiting and
diarrhoea.
Both Joanna and Ben wanted to
return back home to Melbourne, but
unfortunately as the cruise ship was
over 900 kilometres out to sea; the
passengers had no choice but to stay
on board.
Damages of $35 000 for medical
expenses, reimbursement for their
cruise tickets and expenses and
pain and suffering are being sought.
The cruise ship owners have offered
Joanna and Ben a complimentary
replacement cruise to a destination of
their choice. The couple have refused
this offer.
1 Select two words from the
case that indicates that this
is a civil action.
2 Explain how the plaintiffs
rights have been infringed.
3 What is the aim of civil law?
4 What remedy are the
plaintiffs seeking?
5 If you were the magistrate in
this case, what remedy would
you give the plaintiffs?
6 Explain how this case differs
from criminal law.
WHAT S YOUR VI EW?
Working in small groups, nd one example
of a criminal case or a civil case which is of
interest to you. Present a short report to the
rest of the class, outlining the facts of the
case and the sanction or remedy given.
Lead a brief class discussion on whether
your group believe the end result of the
case is, or is not, a fair outcome.
but spent the rest of the trip
Figure 1.9
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Figure 1.10
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26 E SSE NT I A L V CE L E GA L ST UDI E S UNI T S 1 & 2 2
ND
E DI T I ON
THE ROLE OF PARLIAMENT
IN AUSTRALIA
In order to function effectively, every society
requires a supreme body with the power to
govern, administer and pass laws to regulate
the affairs of society and its members. In
our society, this function is exercised by
parliament. The laws made by parliament are
known as legislation. They are written and
published in documents known as statutes or
acts of parliament.
FEDERAL SYSTEM
OF GOVERNMENT
Since 1901, Australia has had a federal system
of government. Prior to this, the continent of
Australia had six self-governing colonies, each
independent of the other. The colonies were
British colonies. They were governed by the
same laws as Britain and all new laws had to
be approved by the British Parliament. The
Commonwealth of Australia came into being
on 1 January 1901. It is now a federation of
Parliament and subordinate
authorities in law-making 1.5
legislation laws
made by parliament
statutes/acts
of parliament
documents containing
a written law made by
parliament
Figure 1.11
The Commonwealth
of Australia
Northern
Territory
Queensland
New South Wales
Victoria
Australian
Capital Territory
Tasmania
South Australia
Western Australia
COMMONWEALTH OF AUSTRALIA
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27 L AW I N SOCI E T Y
six states (Victoria, New South Wales, South
Australia, Tasmania, Queensland and Western
Australia) and two territories (Australian
Capital Territory and the Northern Territory).
Since federation, Australia has been able to
pass its own laws.
In a federal system of government, the
responsibility and power for making laws is
shared between the state parliaments and
the federal parliament. While each state in
the federation governs and administers its
own affairs, the federal or Commonwealth
Government, as it is called, governs the
country as a whole.
The principles of government and the law-
making powers of each parliament are found
in the respective Constitutions. This means
that there are two types of laws in operation
at the one time state laws (for example, the
laws passed by the Victorian Parliament for the
people living in Victoria) and Commonwealth
laws (those passed by the Commonwealth
Parliament and which apply throughout
Australia). Under the Australian Constitution,
in the event of any conict or inconsistency
over a particular law, which both parliaments
have the power to make, the Commonwealth
law will override the state law to the extent of
the inconsistency.
THE DIVISION OF
LEGISLATIVE POWER
The Commonwealth or Federal Parliament
has, according to the Commonwealth of
Australia Constitution Act 1900 (UK)
(the Constitution), the power to make laws
for the peace, order and good government
of the Commonwealth. The Constitution
grants the Commonwealth Parliament
specic powers (sometimes referred to as
enumerated powers). Most of these powers
are listed in s 51 of the Constitution, which
contains 39 powers of the Commonwealth
Parliament. The Commonwealth Parliament
has exclusive powers in certain matters
and shared or concurrent powers with the
state parliaments in other areas. It is therefore
possible for both the Commonwealth
Parliament and state parliaments to
exercise their concurrent powers and create
inconsistent laws in relation to the same area.
Where this happens, s 109 of the Constitution
states the laws made by the Commonwealth
Parliament will override the laws made by
the state parliaments to the extent of the
inconsistency.
The Commonwealths exclusive powers
apply in respect of military forces, coinage,
customs and excise, Commonwealth
departments, property and territories. Most
of the law-making powers are shared with the
state governments. Any powers not listed in
the Constitution as exclusive or concurrent
belong to the states and are known as residual
powers.
The Commonwealth is able to make law
concerning such matters as foreign affairs,
foreign trade, migration, many forms of social
services, taxation, banking, postal services,
weights and measures, industrial disputes,
marriage, divorce, patents, trademarks,
copyright, bankruptcy and navigation.
Constitution set of
guidelines outlining the
structure and the law-
making powers of the
parliament
Commonwealth
of Australia
Constitution Act
1900 (UK) the
document outlining
the structure and the
law-making powers of
the Commonwealth
Parliament (known as
The Constitution)
specic powers
powers given to
the Commonwealth
Parliament by the
Constitution
exclusive powers the
law-making powers
that are held solely by
the Commonwealth
Parliament
concurrent powers
the law-making
powers which
are shared by the
Commonwealth and
state parliaments
residual powers the
law-making powers
that are not listed in
the Constitution and
are the lawmaking
powers that are held
solely by the state
parliaments
ESSENTI AL QUESTI ONS
1 What is the function of parliament?
2 What are the laws made by parliament
known as, and what are they written in?
3 When did the Commonwealth of
Australia come into existence?
4 What does the term federal system of
government mean?
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ND
E DI T I ON
The states, on the other hand, are able
to make laws concerning areas such as legal
system administration, police and crime,
education, housing, health, transport, town
planning, environment, mining, water and
power supply, tourism, youth, sport and
recreation, agriculture and forestry.
The complete Australian Constitution can be read
at the following website:
www.aph.gov.au/senate/general/constitution/index.htm
LEGAL
L I NKS

ESSENTI AL QUESTI ONS


1 Name the Act that outlines the law-
making powers of the Commonwealth
Parliament.
2 Give four examples of laws made by the
Commonwealth Parliament.
3 Give four examples of laws made by the
Victorian Parliament.
4 Differentiate between exclusive,
concurrent and residual lawmaking
powers.
5 Which law will prevail if there is an
inconsistency between state and
Commonwealth laws? Explain why.
Case Space
Commonwealth v Tasmania [1983]
HCA 21 (Tasmanian Dam case)
The Franklin Dam case
If either the Commonwealth or a
state government passes a law
that contravenes the Australian
Constitution, then that law would be
deemed unconstitutional and thus
be declared invalid. Technically the
government would be said to be
acting ultra vires. But what happens
if the state and Commonwealth laws
were both valid, as can often be the
case with a concurrent power? This
situation arose in Commonwealth
v Tasmania [1983] HCA 21, known
more commonly as the Tasmanian
Dam case. Tasmania wanted to build
a hydroelectric dam on the Franklin
and Gordon river system. A group of
environmentalists began a protest
campaign against this proposal
and the Wilderness Society and the
Australian Conservation Foundation
got actively involved. Nationwide
protests were organised under the
No Dams slogan, and a range of
high-prole personalities took up the
cause. Tasmania refused to budge.
The Tasmanian government argued
that the building of the dam was a
residual power and the protesters,
while entitled to their view, were not
going to change Tasmanias decision.
In the lead-up to the 1983 federal
election, the leader of the Australian
Labor Party, Bob Hawke, promised
to stop the dam if elected. Labor
won the election, but Tasmania
continued to build the dam. The
federal government recognised the
Wild Rivers area as a region of special
signicance and it was listed under
the World Heritage Convention. The
federal government passed the World
Heritage (Property Conservation)
Act 1983 (Cth), which specied that
such areas of special signicance
should be protected. The Franklin
was included as one such area.
Now there was a state law allowing
the construction of the dam and a
federal law which demanded that it
be stopped. The case went to the
High Court. There are seven judges
on the full bench of the High Court.
In a 43 decision, the court ruled that
the federal government was validly
using the external affairs power of
the Constitution (s 51(xxix)), which
gives it the authority to legislate
on any matter of international
concern. Although Tasmania had
argued that the construction of the
dam and the regulation of that area
of the state were purely internal or
domestic affairs, the High Court held
that the Commonwealth had the
power to make laws with respect to
international obligations that also
govern conduct within Australia.
Under s 109, the federal law would
override the state law. Section 109
states that when a law of a State
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29 L AW I N SOCI E T Y
Case Space
is inconsistent with a law of the
Commonwealth, the latter shall
prevail, and the former shall, to
the extent of the inconsistency, be
invalid. The construction of the dam
was stopped and the Franklin River
was ultimately preserved for future
generations.
1 What did the Tasmanian
government want to do to
the Franklin and Gordon rivers?
2 Who protested this action?
What action did they take?
3 What was the argument of
the Tasmanian government
as to why they were able to
go ahead with building the
dam?
4 What did the Commonwealth
do in order to stop the
Tasmanian government?
5 What power in the
Constitution did the
Commonwealth government
use to stop the Tasmanian
governments proposed
action?
6 Which court decided this
matter?
7 What was the outcome of
this matter?
8 What was the reasoning of
the court?
Figure 1.12
The Franklin and Gordon river systems
continued
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30 E SSE NT I A L V CE L E GA L ST UDI E S UNI T S 1 & 2 2
ND
E DI T I ON
THE STRUCTURE OF PARLIAMENT
The Australian parliamentary system is based
on the United Kingdoms Westminster
system. The Westminster system is a
democratic system in which there is a head
of state, two houses of parliament and the
party with the majority of seats in the lower
house forms the government. There are nine
parliaments in Australia: one Commonwealth
parliament, six state parliaments and two
territory parliaments. The Commonwealth
Parliament is located in Canberra.
The Commonwealth Parliament and the
majority of state parliaments (including
Victoria) use a bicameral system of
parliament. This means that the parliament
is made up of two Houses an upper house
and a lower house. Queensland and the two
territory parliaments consist of only one house
each.
The Commonwealth Parliament consists
of the Queen (as represented by the Governor-
General), the Senate (the upper house) and
the House of Representatives (the lower
house). In Victoria, the state parliament
comprises of the Queen (as represented by
the Governor), the Legislative Council (the
upper house) and the Legislative Assembly
(the lower house).
Members of parliament are elected
representatives of the people. Members are
voted into seats in each House at elections.
All persons 18 years or over must register
and are required to vote at both state and
Commonwealth elections. The whole of
Australia and the states and territories are
divided into electoral districts, divisions and
provinces based on geographic location and
the population in each area. These areas are
known as electorates. Candidates stand
for election in each of these electorates.
Australia has a preferential system of voting.
At elections, voters are required to place
numbers in their order of preference for a
specic candidate. These candidates usually
represent a political party. The major political
parties are the Liberal Party and the Australian
Labor Party. Candidates who do not belong to
a political party are known as independents.
The candidate who has the most number of
votes (after taking into account preferences)
in each of the electorates wins that seat and
becomes a member of parliament.
After an election, the political party that
has the highest number of members in the
lower house forms the government. At the
Commonwealth level, the prime minister
leads the political party that has formed the
Westminster
system a democratic
system with a head
of state, two houses
of parliament and the
party with the majority
of seats in the lower
house forms the
government
bicameral system
the system of two
houses of parliament
a lower and an
upper house
Commonwealth
Parliament the
central parliament
consisting of the
Governor-General,
the House of
Representatives
and the Senate, this
parliament makes
laws for the whole of
Australia
state parliament the
parliament consisting
of the Governor,
the Legislative
Assembly and the
Legislative Council;
this parliament makes
laws for their particular
state, such as for
Victoria
electorates the
geographic areas
designated throughout
Australia for elections
government the
political party that has
the highest number
of seats in the lower
house
Figure 1.13
Commonwealth
Parliament
Commonwealth Parliament
Queens Representative
(Governor-General)
Lower House
(House of
Representatives)
Upper House
(Senate)
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31 L AW I N SOCI E T Y
government. His state level counterpart is
known as the premier. The largest party
opposed to the government forms the
opposition.
Members of parliament are responsible
for their electorates. They represent their
electorates concerns and issues to the
parliament. Members contribute to debates
and ask or answer questions in parliament.
They may introduce proposed laws, discuss
the details of legislation with other members
of parliament, the media and the public.
Members also serve on parliamentary
committees.
The parliament consists of the Queens
representative and all the members in the
lower house and the upper house, that is, all
the people who received the highest number
of votes in their electorate. Parliament will
consist of people from different political parties
and independent members of parliament.
The Cabinet is the policy-making body
of the government. Cabinet decides what
new laws are necessary and what changes
need to be made to the law. It consists of the
prime minister and the senior ministers at the
Commonwealth level and the premier and
senior ministers at the state level. Ministers
are members of the government who have
been appointed to lead a specic portfolio or
department.
Figure 1.14
State parliament
Cabinet consists of
the prime minister
(at the federal level)
or the premier (at a
state level) and senior
ministers; its main role
is policy-making and
deciding what changes
need to be made to
laws
ministers members of
the government who
have been appointed
to lead a specic
department or area of
government
Commonwealth Parliament:
www.aph.gov.au
(Click on Whos Who to nd out more about the members of federal
parliament and their roles.)
Victorian Parliament:
www.parliament.vic.gov.au
(Click on Members of Parliament to nd out more about the
members of state parliament and their roles.)
LEGAL
L I NKS

ESSENTI AL QUESTI ONS


1 Dene the term bicameral system.
2 Describe the structure of both the
Commonwealth and Victorian Parlia-
ment.
3 What is an electorate?
4 Explain how a person is elected as a
member of parliament.
5 How is the government determined?
6 Differentiate between the terms
parliament, government and Cabinet.
State Parliament
Queens Representative
(Governor)
Lower House
(Legislative Assembly)
Upper House
(Legislative Council)
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32 E SSE NT I A L V CE L E GA L ST UDI E S UNI T S 1 & 2 2
ND
E DI T I ON
THE COMMONWEALTH
PARLIAMENT
The Commonwealth Parliament consists of
the Queens representative (the Governor-
General), the lower house (the House of
Representatives) and the upper house (the
Senate).
The House of Representatives consists
of 150 members, each representing an electoral
ACTI VI TY 1. 13
ACTI VI TY 1. 14
Visit the websites listed in the legal links on page 31. Give seven examples of
ministers and their portfolios from the Commonwealth Parliament and the Victorian
Parliament.
Visit the Australian Electoral Commission website listed below and read about
how preferential voting systems work. Dividing the class into three groups, create
three political parties that will represent the students of your school. Create posters
outlining your partys policies. Create election ballots and as a class, hold an election
using the preferential voting system. Count the votes to determine the successful
political party that will represent your school.
Australian Electoral Commission:
www.aec.gov.au/
LEGAL
L I NKS

division throughout Australia. Members of


the House of Representatives hold ofce for a
three-year term. The government is formed in
the House of Representatives. Government
members sit to the right of the speaker,
opposition members sit to the left. Ministers
sit on the front bench in the House. Members
who are not in the ministry sit behind their
colleagues and are known as backbenchers.
The House of Representatives is known as
House of
Representatives
the lower house in
the Commonwealth
Parliament, it is the
house where the
government is formed
backbenchers
members of
parliament who are
not part of the ministry
Figure 1.15
Parliament House,
Canberra
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33 L AW I N SOCI E T Y
with half of the members elected every three
years. The Senate ensures there is equal
representation from each state. The Senate is
known as the red house as it is decorated in
red. The president presides over the house
and is responsible for maintaining order in
their chamber.
the green house as it is decorated in green.
The speaker presides over the house and is
responsible for ensuring the parliamentary
rules and orders are followed.
The Senate consists of 76 members,
each state elects 12 representatives and each
territory elects two representatives. Members
of the Senate hold ofce for a six-year term,
Figure 1.16
The Senate,
Commonwealth
Parliament House,
Canberra
speaker the person
who presides over the
lower house ensuring
parliamentary rules
and principles are
followed
Senate the upper
house in the
Commonwealth
Parliament
president the person
who presides over the
upper house ensuring
parliamentary rules
and principles are
followed
SUMMARY Structure of Commonwealth Parliament
Queens representative Governor-General
Lower house House of Representatives (150 Members)
Upper house Senate (76 Members)
ACTI VI TY 1. 15
You have just been elected to the House of Representatives. Write a short speech
(300 words) about the issues you are passionate about working on in your term in
ofce.
Deliver your speech in front of your classmates.
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34 E SSE NT I A L V CE L E GA L ST UDI E S UNI T S 1 & 2 2
ND
E DI T I ON
THE VICTORIAN PARLIAMENT
The Victorian Parliament consists of the
Queens representative (the Governor), the
lower house (the Legislative Assembly) and
the upper house (the Legislative Council).
The Legislative Assembly consists
of 88 members, representing each electoral
district throughout the state. Members of
the Legislative Assembly hold ofce for a
four-year term. The government is formed
in the Legislative Assembly. The Legislative
Assembly is known as the green house.
The Speaker of the House presides over the
chamber.
The Legislative Council was reformed
under the Constitution (Parliamentary Reform)
Act 2003 (Vic). The aim of the Act is to enable
the Legislative Council to operate effectively
as a house of review. The Council consists of
40 members elected from eight regions with
ve members from each region. Election of
members is by a proportional representation
system. The term of ofce is four years. The
Legislative Council is known as the red
house. The President of the House presides
over the chamber.
Figure 1.17
Victorian Parliament
House, Melbourne
Figure 1.18
The Legislative
Assembly
Legislative
Assembly the lower
house in the Victorian
Parliament, it is the
house where the
government is formed
Legislative Council
the upper house in the
Victorian Parliament
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35 L AW I N SOCI E T Y
SUMMARY Structure of the Victorian Parliament
Queens representative Governor
Lower house Legislative Assembly (88 Members)
Upper house Legislative Council (40 Members)
ACTI VI TY 1. 16
Answer the following questions for both the Commonwealth and Victorian
Parliaments.
Lower House
How many seats are in the lower house?
What is the length of term in the lower house?
What is the title of the person in charge of the lower house?
Upper House
How many seats are in the upper house?
What is the length of term in the upper house?
What is the title of the person in charge of the upper house?
What is the title of the person who is the Queens representative?
Commonwealth Parliament: www.aph.gov.au
Victorian Parliament: www.parliament.vic.gov.au
LEGAL
L I NKS

Figure 1.19
The House of
Representatives,
Commonwealth
Parliament House,
Canberra
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36 E SSE NT I A L V CE L E GA L ST UDI E S UNI T S 1 & 2 2
ND
E DI T I ON
THE INITIATION OF LEGISLATION
The society in which we live is constantly
changing. It is necessary, therefore, for the law
to lead, facilitate or adapt in response to these
changes. Today, the majority of changes to the
law are initiated through both the state and
Commonwealth Parliaments. New legislation
may be initiated by any of a variety of sources.
GOVERNMENT DEPARTMENTS
Government departments provide admin-
istrative support for the operation of efcient
government and the implementation of
government policies. Each department is
allocated specic duties and responsibilities
related to a particular eld of operation.
For example, in Victoria, government
departments include the Department
of Health, Department of Transport,
Department of Education and Early
Childhood Development, Department
of Innovation, Industry and Regional
Development, Department of Justice, and
Department of Finance.
Each government department has a
ACTI VI TY 1. 17
Visit the two websites listed in the legal links on page 35, and answer the following
questions:
1 Name the following in the Commonwealth Parliament:
the prime minister
the opposition leader
the Governor-General
the representative for your electorate in the House of Representatives
the name of your electorate in the House of Representatives
the speaker of the House of Representatives
the president of the Senate
the senators for Victoria
the political party that has formed government in the Commonwealth
Parliament
the political party that is in opposition in the Commonwealth Parliament.
2 Name the following in the Victorian Parliament:
the premier
the opposition leader
the Governor
the representative for your electorate in the Legislative Assembly
the representative for your region in the Legislative Council
the name of your electorate in the Legislative Assembly
the name of your region in the Legislative Council
the speaker of the Legislative Assembly
the president of the Legislative Council
the political party that has formed government in the Victorian Parliament
the political party that is in opposition in the Victorian Parliament.
government
departments
bodies that provide
administrative support
to the government and
implement specic
government policies
in their particular area,
ministers lead these
departments
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37 L AW I N SOCI E T Y
government minister who takes responsibility
for the operation of that department.
Government departments are relied upon
to provide advice as to the daily task of
administering the laws and also to suggest
recommendations for change to improve the
process of government.
PUBLIC OPINION
Australia is a democracy. This means that
the country is governed by and for the
people. Australian citizens, eligible to vote
at elections, vote for a candidate to represent
their particular electorate in parliament.
Elections are held on a regular basis so that
people can change the government or their
own member of parliament, or both, if they
are not happy with their performance. This
means that the government of the day
has to be careful not to do things that are
too unpopular with the Australian people.
Other ways of attracting the governments
attention to particular issues include public
demonstrations, different forms of industrial
action (strikes, work to rules, bans and so on),
petitions, challenging legislation in the courts,
hunger strikes, public meetings, letters to
members of parliament and media campaigns.
The media, in particular, can make the public
aware of areas of the law that are inadequate
and in need of reform, particularly through
editorials and current affairs-style programs.
The media conducts numerous newspolls,
inviting the public to vote on particular areas
of concern. Public opinion can sometimes
have a big impact on the type and content of
legislation that is passed in parliament.
PARTY POLICIES AND
POLITICAL INFLUENCES
Parliament consists of members elected by the
people but who generally belong to a political
party. In Victoria, the major parties are the
Australian Labor Party and the Liberal Party,
while the National Party and Australian
Democrats have minor representation. These
Figure 1.20
The sources of
legislation
The Courts
Parliamentary
committees
Investigative
commissions
Law reform bodies
INITIATION OF
LEGISLATION
Public opinion
Government
departments
Party policies and
political inuences
Pressure and
lobby groups
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38 E SSE NT I A L V CE L E GA L ST UDI E S UNI T S 1 & 2 2
ND
E DI T I ON
parties each have their own policies and
members of parliament generally attempt to
pass laws that will promote and implement
these policies. A party that wins government
regards itself as having a mandate (or
approval) to achieve its stated policies and
full its electoral promises.
PRESSURE AND LOBBY GROUPS
Pressure groups are becoming an increasingly
important inuence on the law-making
activities of parliament. Lobby or pressure
groups usually represent a section of the
community that shares a common interest or
interests that they feel needs to be protected
or promoted.
Lobby groups inuence the type and
content of legislation in essentially the same
way as public opinion. However, lobby groups
are often more successful because they have
substantial nancial resources behind them,
they employ professional lobbyists to act
on their behalf, and concentrate on specic
issues. Members of parliament representing
marginally-held electorates are particularly
vulnerable to the pressures and activities of
such groups. Strong campaigns by specic
lobby groups at the time of an election have
cost sitting members their seat in parliament
on many occasions.
INVESTIGATIVE COMMISSIONS
The task of government is very complicated
and time consuming. Elected politicians alone
cannot do all the research that is necessary
to investigate a particular problem or social
issue. To assist them in their task, it is not
uncommon for a government to set up an
inquiry to investigate the issue and submit a
set of recommendations for consideration and
debate by parliament.
If the issue is a serious one, a Royal
Commission will usually be set up instead.
This will allow for greater powers to be given
to make its investigation more effective. For
example, a commission can be given powers
to summon witnesses or issue search warrants,
powers that an ordinary inquiry does not
have. Royal Commissions will usually be
composed of judges or senior lawyers. Recent
commissions have investigated the 2009
Black Saturday bushres, equine inuenza,
areas of corruption, organised crime, death of
Aborigines in custody and the gas explosion
disaster at the Longford Gas Plant. The
report of a Royal Commission is very much
respected and its recommendations often nd
their way into new legislation.
PARLIAMENTARY COMMITTEES
Parliamentary committees are set up
by parliament and are composed entirely of
members of parliament. The establishment of
a Parliamentary Committee of Inquiry is the
prerogative of parliament. They can be set up
to review existing laws or deal with specic
problems of concern to the parliament. For
example, committees have been established
to investigate such areas as animal welfare,
human embryo experimentation and road
safety. The ndings of these committees often
form the basis for new legislation.
LAW REFORM BODIES
The task of keeping the law up to date is
an important function of any government.
Once again, because of time constraints, the
parliament relies very heavily on the work
and recommendations of law reform bodies
the Australian Law Reform Commission
(ALRC) (federal) and the Victorian Law
Reform Commission (VLRC) (state). They
are composed of very experienced and well-
qualied lawyers, including judges and
academics. They issue their ndings in the
form of reports or discussion papers. These
pressure groups
groups of individuals
who share a common
interest and who
lobby parliament on
a change in the law
which they believe
should occur
inquiry an
investigation of an
issue by a body
who makes a list of
recommendations
to be considered by
parliament
Royal Commission
an investigation of
an issue by a body
of legal experts,
using witnesses in
a similar process to
a court of law; their
report of conclusions
is presented to
parliament
parliamentary
committees
groups of members
of parliament who
review existing laws
and consider issues
and problems of
concern to parliament,
these groups make
recommendations to
parliament
law reform bodies
groups of legal
experts whose role are
to advise and make
recommendations
to parliament on law
reform
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39 L AW I N SOCI E T Y
recommendations are only of an advisory
nature but they have met with some success
in inuencing legislative changes.
THE COURTS
The role of the courts is to help resolve and
to adjudicate on matters that are in dispute
according to what the law is, rather than on
what the law should be. This, of course, does
not prevent the courts from suggesting what
the law should be and parliament will often
be inuenced by such recommendations from
experienced judges. This will particularly be
the case where the application of an outdated
law results in a grave injustice or nonsensical
result not in keeping with generally held
attitudes of the time.
Court decisions can also be seen to
inuence legislation in cases where the court
decides the legislation to be beyond the
powers of the parliament or interprets the
scope or meaning of legislation contrary to the
intentions of parliament.
ACTI VI TY 1. 18
Working in small groups, develop a strategy to lobby for changes to any legislation
you may want to alter. Things to consider using in your strategy are:
the media
organising protest marches
contacting local members, and
winning public support.
Prepare a catchy placard to use for your particular change.
ESSENTI AL QUESTI ONS
1 State the various sources from which new
legislation may be initiated.
2 Explain how government departments
can initiate changes in legislation.
3 How can the public make parliament
aware of the need to change the law?
4 Explain how pressure groups can
inuence a change in the law.
5 Explain the difference between an inquiry
and a Royal Commission. What role do
they play in bringing about changes in
the law?
6 What is a parliamentary committee? How
do they inuence changes in the law?
7 Give an example of a law reform body and
explain their function in initiating change.
8 What role do the courts play in changing
the law?
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40 E SSE NT I A L V CE L E GA L ST UDI E S UNI T S 1 & 2 2
ND
E DI T I ON
THE LEGISLATIVE PROCESS
Legislation usually starts as policy of the
government. The policy is then written up as a
proposed law to be considered by parliament.
Proposals for new laws, or amendments to
existing laws, are rst introduced in the lower
house or the upper house in the form of a
bill. The exception to this rule are nancial
bills, which must be introduced into the lower
house rst. In practice, most bills originate in
the lower house. A bill is a draft copy of the
proposed act of parliament.
The bill is presented to the members of the
house by the minister responsible for the issues
covered in the proposal. The bill is read three
times in the house. The rst time is simply
to introduce the bill. The second and third
readings involve more detailed debate and
consideration of each clause or section of the
bill and amendments or changes may be made
to it. At the second reading, there is usually a
Second Reading Speech made by the minister
responsible for the bill. The Second Reading
Speech is used to explain the bill, both in
terms of its contents, and the reasons why it
has been created. At this time, other ministers
and members are able to ask questions and
to debate the bill. A vote on the bill by the
members of the house is taken during the
third reading. If successful, the bill passes to
the other house where it undergoes a similar
process. If the second house wishes to make
changes to the bill, they will often send it back
to the house of origin for consideration. If both
houses pass the bill, it is given to the Queens
representative for Royal Assent. Royal
Assent is the approval or signing of the bill by
the Queens representative. On receiving this
Assent, the bill becomes an act of parliament.
It does not become an operative law however,
until it is ofcially publicised or proclaimed in
the Government Gazette and a date is xed
for it to come into operation.
ACTI VI TY 1. 19
Using the website of political parties, pressure groups or a law reform body, nd an
issue that one of these groups would like changed.
Present a report of 500 words covering:
the issue or area this particular group would like to see changed
the reasons why the change is needed, and
the methods used by this group to inuence a change in the law.
bill a proposed law
to be considered by
parliament
Royal Assent the
formal approval of a
Bill by the Governor
at state level and the
Governor-General at
the Commonwealth
level; the signing
of the bill before it
becomes an act of
parliament
Parliament of Victoria:
www.parliament.vic.gov.au/education/edu.html
(Click on How a Law is Made to nd out more about how legislation
is created in Victoria.)
LEGAL
L I NKS

ESSENTI AL QUESTI ONS


1 What is a bill?
2 Which house is a bill usually introduced
into?
3 What type of bill must always be
introduced into the lower house? Why?
4 What role does Cabinet play in law-
making? Who makes up this body?
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41 L AW I N SOCI E T Y
Figure 1.21
Law-making by
parliament
parliament
members of parliament
public service
individuals
parliamentary committees
media
public opinion
First House
1 Initiation: permission is
sought to introduce the
bill.
2 First reading: formal
motion to bring in the bill.
A request to proceed and
print the bill.
3 Second reading:
members are given a
copy of the bill with the
explanatory notes. The
purpose of the bill is
explained.
4 Committee stage:
the bill is examined in
detail, clause by clause.
Amendments can be
made.
5 Report to the House:
report from the
Committee is considered
and adopted.
6 Third reading: further
debate may take place.
The bill is voted on.
The bill has passed the
rst House.
Cabinet
discusses the idea
approval in principle
Government
discusses the idea
adopts the idea as policy
nal approval
Parliamentary Counsel
draws up a draft bill
Second House
The same procedure as in
the rst House is followed.
Certication
The clerk of parliament
certies the bill.
Royal Assent
Approval by the Queens
representative.
Proclamation
The act will come into
operation on the date
announced in the
Government Gazette.
THE LAW NOW APPLIES
Parliament
Idea for
the law
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DELEGATED LEGISLATION
Not all laws are directly made by parliament.
There is a vast body of rules, orders, regulations
and by-laws created by subordinate
authorities under specic powers delegated
or given to them by parliament. Parliament
cannot possibly draw up all the detailed rules
to govern all aspects of societys day-to-day
operations. This difculty is surmounted by
passing an act of parliament (known as an
enabling act) that makes it plain, in general
terms, what is intended and then gives powers
to a subordinate body to make the detailed
rules.
Parliament can take away this power by
repealing the enabling act.
Laws made by these subordinate
authorities are known as delegated
legislation.
Delegated legislation is valid only if it is
within the legislative power conferred by
parliament. If it is not within the scope of the
enabling act, it is said to be ultra vires and is,
in that event, invalid and inoperative.
The advantage of delegated legislation
is that it enables rules and regulations to be
made or altered quickly by subordinate bodies
that have the time, expertise and local or
specialised knowledge necessary to pass such
laws. The parliament delegates such powers
to four main subordinate bodies:
a Executive Council
b statutory authorities
c local council, and
d government departments.
Case Space
Commonwealth Parliament ban
same-sex marriages in Australia
The Commonwealth Parliament
has passed a bill the Marriage
Amendment Bill to ban same-sex
marriages in Australia.
The bill, which was passed by a
Senate vote of 39-7 will insert the
following words into the Marriage
Act: Marriage means the union of a
man and a woman to the exclusion
of all others, voluntarily entered into
for life. A special provision states:
Certain unions are not marriages a
union solemnised in a foreign country
between: a) a man and another man;
or b) a woman and another woman;
must not be recognised as a marriage
in Australia.
The Catholic Church has been very
vocal on the bill, voicing very strong
opposition to same-sex marriages.
They believe the Bible states that
homosexuality is wrong in the eyes
of God. Anglican bishops are also in
opposition to homosexual ministers
and marriages.
Liberty Victoria says parliaments
failure to recognise same-sex
marriages infringes upon the
fundamental right to equality and
freedom from discrimination. The
Equal Rights Network, a group of
gay rights advocates, has engaged
lawyers to examine a challenge on
the law to the High Court. Australian
Marriage Equality, a pressure group
formed to lobby for gay marriage, is
also against this law.
1 What was the bill that
was passed by the
Commonwealth Parliament?
2 What was the purpose of this
bill?
3 What needed to occur before
this bill became law?
4 Name one pressure group
that is in favour of this law
and one pressure group that
is against it.
5 Discuss two methods that
can be used to inuence
parliament on the need for a
change in the law.
WHAT S YOUR VI EW?
As a class, discuss the following questions:
1 Should same-sex marriages be
recognised in Australia?
2 Discuss arguments for and against
same-sex marriages.
3 Visit www.aph.gov.au and nd two other
bills under consideration.
subordinate
authorities bodies to
whom parliament have
given law-making
powers
enabling act an act
of Parliament that
gives subordinate
authorities the power
to make laws
delegated
legislation laws
made by subordinate
authorities
ultra vires outside
the power of the
authority making the
law
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43 L AW I N SOCI E T Y
THE EXECUTIVE COUNCIL
The parliament often confers power on the
Governor-General (at the federal level) and
the Governor (at the state level) to make laws.
This does not mean that he or she personally
draws up such regulations. In practice, the
regulations are normally prepared by the
appropriate government department and then
receive formal endorsement by the Governor
and the Executive or senior ministers of the
government in power.
At the state level, this group, comprising
of the Governor and senior ministers, is
known as the Governor-in-Council. At
the Commonwealth level, the Executive
Council consists of the Governor-General
and senior ministers, and is known as the
Governor-General-in-Council. The Executive
Council is largely responsible for regulations
concerning road laws.
STATUTORY AUTHORITY
A statutory authority is an authority
established by an act of parliament to
conduct a business undertaking. The act
often empowers these bodies to make rules
and regulations to administer and conduct
their affairs. These organisations have the
advantage of having a greater independence
and exibility in the day-to-day management
of their activities. Examples include the
Environment Protection Authority, Australia
Post and the Country Fire Authority.
LOCAL COUNCILS
Local councils, established and given
powers under the authority of an act of
parliament, administer the affairs of the
many municipalities (cities, towns and shires)
and may make laws for a number of specic
purposes including building, planning, health,
garbage, control of domestic animals, parks
and gardens, libraries, swimming pools, car
parking, pre-schools and health centres.
GOVERNMENT DEPARTMENTS
Parliament provides guidelines and policies to
be administered by government departments.
A minister is in charge of a particular
government department. The department is
responsible for the rules, regulations and the
administration of their portfolio. Examples
include the Department of Education
and Early Childhood Development, the
Department of Health and the Department
of Foreign Affairs.
THE PROCESS OF MAKING
DELEGATED LEGISLATION
Laws made by subordinate authorities are
not subject to the comprehensive, extensive
and thorough debate that occurs in the law-
making process of parliament. Law-making
by subordinate authorities is far less formal
than law-making by parliament.
The law-making process of a subordinate
authority commences with an issue or idea
Executive Council
a body that passes
delegated legislation
in areas it has been
given power to by
an enabling act, it
consists of senior
ministers and the
Governor-General
(Commonwealth level)
and the Governor
(state level)
statutory authority
an organisation
established by an act
of parliament to make
rules and regulations
in a particular area
local councils
elected bodies who
administer the affairs
of local municipalities
and makes laws for
the benet of the local
area
ACTI VI TY 1. 20
Visit the website of your local council. Write a brief report (300 words) addressing the
following:
Dene the structure of your local council.
Explain the objectives of the council.
What issues are currently being investigated?
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44 E SSE NT I A L V CE L E GA L ST UDI E S UNI T S 1 & 2 2
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being raised. Working groups of interested
people are formed to investigate the need
for the law. These groups provide feedback
on their ndings. If the new law involves an
appreciable burden or cost to the public, a
regulatory impact statement is prepared
and notices placed in newspapers inviting
public comment. Consideration is given to
public comments. A draft law is then prepared
and forwarded to the relevant minister. A
certicate of consultation is presented to
the Scrutiny of Acts and Regulations
Committee (a parliamentary committee).
The proposed law is then checked by the
parliamentary counsel. Final approval is given
by the Executive Council and a notice of the
new law is published in the Government
Gazette.
One concern of the growing trend
towards delegated legislation is that matters
of law-making are moving more and
more out of the control of parliament (the
elected representatives of the people). For
this reason, it is vital that the creation of
delegated legislation is properly controlled
and supervised. This supervision is exercised
through parliamentary and ministerial review
of new regulations by special committees and
questions in parliament. Challenges as to the
validity of any delegated legislation may also
be made through the courts.
regulatory impact
statement a
statement outlining
a proposed law
and inviting public
comments as the
law involves an
appreciable cost or
burden to the public
Scrutiny of Acts
and Regulations
Committee a
parliamentary
committee whose
role is to check and
scrutinise proposed
laws to ensure they do
not infringe unduly on
individual rights
ESSENTI AL QUESTI ONS
1 What is delegated legislation?
2 Why do you believe parliament delegates
law-making power to other bodies?
3 What is an enabling act?
4 List the four main types of subordinate
authorities.
5 Give ve examples of laws made by
subordinate authorities.
6 Explain the process of law-making used
by subordinate authorities.
7 How is delegated legislation supervised?
ACTI VI TY 1. 21
Classify each of the following rules and regulations under the subordinate body that
would have made it. (Choose from the following four subordinate bodies: Executive
Council, statutory authority, local council, and government department.)
all workers in Australia must lodge a taxation return
res may not be lit on days of total re ban
children must attend school from the age of ve
pets must be registered
letters must have a stamp to be posted
speed limits around schools, and
tickets must be purchased for designated areas of parking
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45 L AW I N SOCI E T Y
Figure 1.22
Law-making
by subordinate
authorities
The idea for a new law or a change in the law
Working parties investigate the need for the law or change in the law
Interested groups provide feedback on the change or proposed law
Report presented to the minister of the relevant department
Regulatory impact statement is compiled and a notice is published
in the newspapers, inviting comments from the public
Consideration of public comments
Drafting of the proposed law or change in the law
Consultation with the minister of the relevant department
Certicate of consultation is presented to the Scrutiny of Acts
and Regulations Committee
Parliamentary counsel scrutinises the regulations
Executive Council gives approval
Notice is published in the Government Gazette
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46 E SSE NT I A L V CE L E GA L ST UDI E S UNI T S 1 & 2 2
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The Age
19 October 2009
Councils will be able to kill
unregistered dangerous dogs found
roaming the streets, without owners
having the right to appeal under a
new law agged by the Victorian
government.
Following an attack by an
American pit bull at the weekend,
Premier John Brumby said today
new legislation will be introduced
into parliament in 2010.
Under the proposed changes,
owners of restricted breeds will lose
their right to appeal to the courts if
their dog is unregistered and seized
by a local council.
If there is a dangerous dog breed,
if there is a restricted dog and its
running along the street, you know,
with no collar and not muzzled, that
dog will be taken in by council and it
will be put down, Mr Brumby told
reporters.
This is a stronger policy, its a
tougher policy, there will be appeal
rights that will be removed so
the power will be in the hands of
councils to make sure they can deal
with dangerous dogs that reoffend
or restricted breeds that are not
complying with the terms of their
registration.
Fines will also increase for owners
who do not register their restricted
breeds of dogs or who breach the
terms of the registration.
We will put a little bit more on
that again to make sure that the
community understands loudly and
clearly the responsibilities that go
with owning a dangerous dog or a
restricted breed dog.
An American pit bull killed a
small dog and injured a man in an
attack in Melbournes north last
night.
Councils to have more power
over dangerous dogs
Source: www.theage.com.au/national/councils-to-have-
more-power-over-dangerous-dogs-20091019-h4j0.html
1 What is the law that has been introduced?
2 Why is this law needed?
3 From where do local councils derive their power to make laws?
4 Outline one of the stages local councils will have to undertake
to make this law.
5 Do you believe this law may be controversial? Give reasons for
your answer.
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47 L AW I N SOCI E T Y
Figure 1.23
Councils will be able
to kill unregistered
dangerous dogs
found roaming the
streets, without
owners having the
right to appeal
Figure 1
Councils
to kill unr
dangerou
found roa
streets, w
owners h
right to ap
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E DI T I ON

PART SUMMARY
1 Legal rules are laws that apply to all
individuals in society, whereas non-legal
rules only apply to specic groups.
2 The central task of a legal system is to
combine and balance two conicting
ideals freedom and order.
3 We need criminal laws because the law:
a controls social relations and
behaviour
b provides a code of acceptable
behaviour
c protects individuals and their rights
d reects community values
e protects society
f facilitates social change, and
g provides the institutions and
procedures to settle disputes.
4 Characteristics of an effective law
includes:
a public awareness, understanding and
acceptance of the law
b the ability to enforce the law
c clarity and drafting of the law
d consistency with other laws, and
e stability in the law and the ability to
change to reect what is happening
in society.
5 Civil law is concerned with the
enforcement of individual rights.
6 Criminal law is primarily concerned with
the protection of society.
7 Law made by parliament is known as
legislation. It is written and published in
documents known as acts of parliament.
8 Australia is a federation of six states and
two territories.
9 The principles of government and law-
making powers of each parliament are
found in the respective Constitutions.
10 The Constitution sets out exclusive
powers (powers of the Commonwealth
Parliament) and concurrent powers
(powers shared between the
Commonwealth and state parliaments).
Powers not set out in the Constitution
are the powers of the state parliaments,
known as residual powers.
11 All governments in Australia, besides
Queensland and the two territories, have
two houses of parliament: an upper
house and a lower house (known as a
bicameral system).
12 All persons over 18 must register and
vote in state and federal elections.
13 The whole of Australia and the states and
territories are divided into electorates.
14 After an election, the party with the most
representatives in the lower house forms
the government.
15 Members of parliament are responsible
for their electorates.
16 The Cabinet is the policy-making body of
the government who decides what new
laws are necessary and what changes
need to be made to the law.

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Part review
17 The Commonwealth Parliament consists
of the Governor-General (Queens
representative), House of Representatives
(lower house) and Senate (upper house).
The Victorian Parliament consists of
the Governor (Queens representative),
Legislative Assembly (lower house) and
Legislative Council (upper house).
18 Legislation can be initiated through a
variety of sources including:
a government departments
b public opinion
c public policies and political inuences
d pressure and lobby groups
e investigative commissions
f parliamentary committees
g law reform bodies, and
h the courts.
19 Legislation is introduced in the form of a
bill, usually in the lower house. It needs to
be successfully voted on by both houses
and given Royal Assent before in can
come into operation as a law.
20 Not all laws are made by Parliament. They
can also be made by:
a subordinate authorities
b executive council
c statutory authorities
d local councils, and
e government departments.
REVI EW QUESTI ONS
1 List two differences between legal and
non-legal rules.
2 What are the aims of laws?
3 What are four aims of criminal laws?
4 How do criminal laws protect society?
5 What are three characteristics of an
effective law?
6 Outline two differences between civil and
criminal law.
7 What are the burdens of proof for both
civil and criminal law?
8 What is a constitution?
9 How is power divided between state and
Commonwealth parliaments?
10 What is a bicameral parliament?
11 Name the Queens representative and
the upper and lower houses for both
the Commonwealth and Victorian
Parliaments.
12 What is an electorate?
13 List three ways that legislation can be
initiated.
14 What is a bill?
15 How are subordinate authorities
delegated powers to create laws?
16 Besides parliament, who can make laws?
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E DI T I ON

PRACTI CE EXAM QUESTI ONS


1 Outline the similarities and differences
between legal and non-legal rules.
(8 marks)
2 Explain four reasons why we need
criminal laws. (8 marks)
3 Describe four characteristics of an
effective law. (8 marks)
4 Describe a recent change in law. What
makes this law effective or not effective?
(4 marks)
5 Outline ve differences between civil law
and criminal law. (10 marks)
6 Explain how legislative power is divided
between state and Commonwealth
parliaments, giving one example of each
type of power. (6 marks)
7 Explain the structure of both the state and
Commonwealth parliaments. (6 marks)
8 Describe four ways in which legislation
can be initiated. (8 marks)
9 Describe the process that a bill goes
through to become legislation. (10 marks)
10 Describe the process of making
delegated legislation. (5 marks)
ASSESSMENT TASKS
Assessment task 1 Folio and report
Collect 10 Australian articles relating to law
(ve relating to criminal law and ve relating
to civil law). These can be collected from
newspapers, journals, books and online news
sites.
1 For each of the articles answer the
following:
a What is the source and date of the
article?
b Does the article relate to a criminal
or civil matter? How have you
determined this?
2 Using one of the criminal law articles
answer the following:
a What is the name of the defendant?
b What crime has been committed?
c Who has the burden of proof in this
case?
d What is the standard of proof in this
case?
e What was the sanction given by the
court?
f Why is a law against this crime
needed (what is the purpose of the
law)?
g Is the law effective? Why or why not?
h Who has the power to legislate
in relation to this law, state or
Commonwealth?
3 Using one of the civil law articles, answer
the following:
a What is the name of the plaintiff and
defendant?
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51 L AW I N SOCI E T Y
Part review
b What type of civil law was
discussed?
c Who has the burden of proof in this
case?
d What is the standard of proof in this
case?
e What was the outcome of the case?
4 Answer the following questions:
a What is the difference between a
legal rule and a law?
b Explain the main distinctions between
criminal law and civil law, using one
criminal law and one civil law article
as examples.
Assessment task 2
Structured assignment
Read the following scenario and answer the
questions.
Maria has decided that she would like to
become a politician. She has discussed this
with friends, some of whom have suggested
she stand for election in the Commonwealth
Parliament, while others have suggested the
State Parliament.
1 What are the structures of the Victorian
and Commonwealth Parliaments? How
many seats are there in each house?
2 What does the term bicameral system of
parliament mean?
3 Are all parliaments in Australia bicameral
systems of parliament? Explain your
answer.
Maria has decided she will stand for election
in the Legislative Assembly.
4 What is an electorate?
5 What is the preferential system of
voting?
6 If Maria is successful and becomes a
member of the Legislative Assembly,
what will her responsibilities be?
7 If Maria is successful, how will she
know if she is a member of the
government?
Maria is successfully elected as a member
of the Legislative Assembly and her political
party has become the government. Maria
has decided that she would like to introduce
a bill into parliament.
8 What is a bill?
9 How can legislation be initiated?
10 Explain the process of passing
legislation.
The bill that Maria has decided to introduce
relates to Australian currency.
11 Can Maria introduce a bill about
currency in the Legislative Assembly?
Why or why not?
12 Explain how the Constitution divides
powers between the states and the
Commonwealth.
Maria has heard other members of
parliament talking about delegated
legislation.
13 What is delegated legislation?
14 How is delegated legislation created?
15 How do subordinate authorities create
law?
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