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Student book answers10.1 Introduction to the Australian ConstitutionPages 310–311

10.1 Check your learning

Define and explain

1 Define the word ‘constitution’.

A constitution is a set of rules and principles that rule how a country is to be governed. It establishes the nature, function and limits of the government.

2 Which parliament created the legislation that became Australia’s Constitution? Why was this so?

The United Kingdom created the Commonwealth of Australia Constitution Act 1900 (UK) because in the nineteenth century Australia was made up of British colonies. Through the process of federation, Britain gave their approval for a central body to be created (the Commonwealth Parliament) and the colonies to become states with their own state parliaments. The British Parliament passed the act within their parliament to finalise the federation process.

3 Identify three systems or features of our legal and political systems that only exist because of the Australian Constitution.

Student answers will vary but may include:

• the Commonwealth Parliament and its structure: the upper and lower houses

• the High Court of Australia

• matters relating to state laws

• the division of law-making power

• the requirement of a referendum to change the Australian Constitution.

Synthesise and apply

4 Using information provided in this topic, as well as your own research, provide two reasons why the colonies of Australia wanted to federate.

One reason to federate was defence. At the time there was a fear of being attacked and so the colonies felt they would be stronger with a national defence force.

Another reason was trade. Because of tariffs (a form of tax) imposed on interstate trade, there was a desire for there to be free trade and movement around the colonies.

© Oxford University Press 2018 1Justice & Outcomes VCE Legal Studies for Units 3 & 4 Teacher obook assess ISBN 9780190310394Permission has been granted for this page to be photocopied within the purchasing institution only.Version 2.0

5 Imagine that the year is 1897 and you live in one of the smaller colonies such as Tasmania or South Australia. Describe two concerns you may have held about the introduction of the new parliamentary system in Australia.

Student answers may vary but possible answers include the following.

One concern may have been the smaller colonies not getting as much representation in the federal parliament as the other larger states. The smaller colonies may have wanted to ensure that they had an equal say on state issues in the newly created parliament when making laws.

Another concern may have been the smaller colonies wanting to ensure that they had an equal say as the larger states in whether there were any changes to be made to the Constitution.

Analyse and evaluate

6 Constitution survey

a Conduct a survey of five people. These people should not come from your Legal Studies class. Ask them the following questions:

• What is the Australian Constitution?

• What role does the Constitution play in Australian society?

Student answers will vary.

b Prepare a short summary of each person’s responses.


c Using your summary as a reference, take part in a class discussion around the following statement: ‘The Australian Constitution has no relevance to the lives of everyday Australians.’



10.2 The role of the parliament in law-makingPages 312–318


Define and explain

1 Outline two roles of the Legislative Assembly in law-making.

Student answers will vary but may provide an outline of two of the following roles:

• to initiate new laws

• to form government: the party who has the most members in the Legislative Assembly will form government in Victoria

• members are elected to represent a district and should represent the views and interests of those people

• if a bill has been initiated and passed through the Legislative Council, the Assembly will review that bill

• a bill must be introduced for any taxes collected or money spent, and so the Assembly controls government expenditure.

2 Explain the term ‘states’ house’ in relation to the role of the Senate in law-making.

The Senate is considered the states’ house as each state has the same amount of representatives – and therefore each state is equally represented and the role of the Senate is to ensure the states’ view are represented in passing laws.

3 For each of the Commonwealth Parliament and the Victorian Parliament, which is the house of government? Explain how this impacts on the lawmaking process of the parliaments.

For Commonwealth Parliament, the House of Representatives forms government. For Victorian Parliament, the Legislative Assembly forms government.

Having a majority in the house of government makes it easier to pass bills through that house. This is because the government introduces most bills into the lower house, and because it has a majority in that house, bills will almost always pass through the lower house. However, the role of the opposition in the house of government is to scrutinise and check that the government is accountable for the laws they are passing through. Laws without the support of the government will usually fail to be voted in.

4 If you were elected to a seat in the House of Representatives, how many years would you serve before the next election?

The term of office for members of the House of Representatives is no more than three years (it is not a fixed term).


5 Provide two similarities and two differences between the roles of the House of Representatives and the Senate in law-making.

Both the Senate and House of Representatives have the ability to initiate and pass bills. In addition, both houses are able to act as a house of review for bills that are initiated in the other house.

The House of Representatives differs because the members are directly elected by the people in their electorate. This means that members must represent the views of the people in their electorate. In contrast, the Senate represents the states in law-making rather than the views of a Senate’s electorate.

The House of Representatives also controls government expenditure and only it has the power to introduce money bills. The Senate can only pass money bills but cannot introduce them like the lower house.


6 Access the Parliament of Victoria website and go to the Legislation page. A link is provided on your obook assess. Provide a chronology of the passage of the legislation.


7 Your friend keeps on confusing the names of the houses of parliament, the structure of both parliaments and who each house represents. Devise a creative way for your friend to remember all of this. It can be a poem, song, rap or visual diagram.



8 Undertake research to discover the present make-up of the Senate in terms of the number of seats held by political parties and independent members.

a Does the Government have a majority of members in the Senate?

Student answers will vary depending on the current composition of the Senate.

b To what extent does it serve the interests of democracy if opposition parties and independent members have a majority in the Senate? Give reasons for your answer.

Student answers will vary, but should include one or more of the following points:

• It provides for greater scrutiny of the lower house because the minor parties and independents carefully review the actions of the government, thus increasing the checks on parliament in law-making.

• It ensures that the voices of all Australians are heard, rather than only the voices that support the majority party (the government), ultimately preserving the interests of democracy.

• The upper house is likely to review bills passed through the lower house more carefully with robust discussion about amendments to satisfy the minor parties and independents.

• It provides for responsible government by holding ministers answerable and accountable for their decisions and the actions of their departments.


9 In a 200-word response, explain why it is important that laws made in Australia represent the views, values and expectations of the people. What might occur if the Commonwealth Parliament ignored the will of the people?


• The Commonwealth Parliament would not be upholding the principle of representative government where the actions of government reflect the views of the majority of voters; they would lose the trust of these voters.

• If the Commonwealth Parliament ignored the will of the people they would be voted out at the next election because they had failed to act as a representative government.

• If ministers are found to have acted in a manner that is not acceptable to the people, they come under public scrutiny and may need to resign, possibly leaving their party in a vulnerable position at a next election.


10.3 The role of the Crown in law-makingPages 319–320


Define and explain

1 What is royal assent? How important is it in the process of law-making?

Royal assent is approval by the Crown (through its representatives, the Governor-General and the state governors) of any bills before they become law. All bills must have royal assent to become law; therefore, it is an important part of the process – without it, bills do not become laws.

2 Does the Queen’s representative have the power to stop a bill from being passed? Justify your answer.

At a federal level the Queen’s representative does have the power to stop a bill from passing because they can withhold royal assent. This does not occur often but can be carried out by the Governor-General in a number of circumstances, which are specified in the Australian Constitution. At a state level, however, the Queen’s representative (the Governor) does not have the ability to withhold royal assent.


3 Access this year’s Commonwealth Regulations online on either the Australasian Legal Information Institute (AustLII) website or the Commonwealth Parliament website. A link to these websites is provided on your obook assess. Find a regulation that has been made by the Governor-General of Australia and answer the following questions.

a What is the name of the regulation?


b When did the Governor-General make the regulation?


c Under what Act of Parliament was this regulation made?


4 Conduct some research.

a Who is the current Governor-General?

Sir Peter Cosgrove (accurate as at October 2017)

b How long is the Governor-General’s term in office, and when will a new Governor-General be appointed?


The term of office for a Governor-General is ‘at the Queens’ pleasure’; however, practically, the term is generally 5 years. Sir Peter Cosgrove was appointed in 2014; therefore, a new Governor-General will be appointed in 2019.

c Who is Victoria’s current Governor?

Linda Dessau AC (accurate as at October 2017)

d How long is the Governor’s term in office, and when will a new Governor be appointed?

There is no set term of office for the Governor.


5 Outline the role of the Executive Council. Explain how the existence of the Executive Council might make the process of law-making more efficient.

The Executive Council is appointed by the Governor-General (or state governor) and is a group consisting of prime minister (or premiers at state level) and other senior ministers.

The Executive Council provides advice on government matters and approves secondary legislation, which consists of rules and regulations made by government bodies such as government departments and statutory authorities. This makes the process of law-making more efficient because it saves parliamentary time and resources. Also, by approving legislation in this way, the bureaucratic process is limited and the passage of the delegated laws is streamlined, providing for further efficiency.

6 ‘Given that royal assent is almost always granted, the role of the Crown in law-making is redundant’. Do you agree? Give reasons.

Student answers will vary, but some common responses are provided in the table below.

Students who agree may list the following points: Students who disagree may list the following points:

• The Queen’s representative is appointed by the British monarch based on the advice of the government (prime minister for federal and premier for each state).

• The Queen’s representative is predominately a figurehead for the monarchy and holds no significant role because most of their responsibilities are matters of formality and acts of symbolism.

• There is no need for a Queen’s representative for law-making at the state level because they do not hold any power to withhold the granting of royal assent.

• When working within the executive council, the Crown acts on the advice of the prime minister or state premier when approving delegated legislation.

• The Crown has the ability to withhold royal assent where appropriate and while this has not been needed often it is an important check and balance to ensure the democratic nature of our society still operates effectively.

• The Crown holds significant responsibilities in terms of ensuring that all aspects of the parliamentary system operate democratically, including the operations of parliament which all contribute to effective law-making.


10.4 The division of constitutional law-making powersPages 321–325


Define and explain

1 Identify the three different types of law-making powers.

The three types of law-making powers are residual powers, concurrent powers and exclusive powers.

2 Using two examples, define the term ‘concurrent powers’.

Concurrent powers are areas where the Commonwealth and states can both make laws. Examples of this include trade and taxation.

3 Explain why the Commonwealth can create laws for the territories.

The Commonwealth can create laws for the territories because the Australian Constitution gives exclusive power to the Commonwealth in this area (provided for in Sections 111 and 122). Territories are areas either placed by the Queen under the Commonwealth’s authority or surrendered by a state to the Commonwealth. Therefore, they fall under the federal parliament’s law-making jurisdiction with their representation constituting part of the houses of the federal parliament.


4 Identify two examples of exclusive powers and provide reasons why the original writers of the Constitution may have decided to deny the states law-making powers over these areas.

Student answers will vary but may include the following responses.

Examples of exclusive powers are: defence, currency, customs and border protection, control of railways for defence purposes, acquisition of state railways, naturalisation and borrowing money.

The reason why the Commonwealth has exclusive power in these areas is that these areas concern the Commonwealth – that is, the whole of the country. Given none of these areas would affect just one state, it is important that only the Commonwealth can make laws in these areas. In addition, it was considered natural at the time of writing the Constitution that only the Commonwealth have the power to make laws for some specific areas – for example, naturalisation or border protection.

5 Provide one similarity and one difference between residual powers and concurrent powers.

Both residual and concurrent powers allow the states to make laws in those areas.

One difference is that the Commonwealth cannot make laws in areas of residual power but can make laws in areas of concurrent power.

6 For each area of the following, identify the parliament that has the power to make the law. You may need to access the Constitution to answer some of these:


a building submarines for defence purposes

The Commonwealth

b creating a new school

The states

c building a new road

The states

d raising taxes

The Commonwealth and the states

e establishing an army

The Commonwealth

f denying citizenship to a person

The Commonwealth

g imposing a levy on imported goods.

The Commonwealth


7 Given that many areas of law-making power are residual, there are now differing laws across Australian states in areas such as altruistic surrogacy (where a woman agrees, for no financial gain, to become pregnant and bear a child with the intention of handing over the child at birth to another person or couple).

a What human rights issues may occur in an area such as altruistic surrogacy where laws vary from state to state?

One human rights issue is possible discrimination against one state resident over another in relation to surrogacy. If there are some state laws that are more beneficial in this area than another state, residents may be potentially discriminated against because of where they live.

Another human rights issue is whether certain couples or people are denied the ability to have a child by way of a surrogate because of a particular attribute, such as age or a particular marital status.

b In your opinion, would Australia be better served by just having the Commonwealth Parliament create law on all areas for the entire nation? In your answer, address the issue of how residual powers can address the particular needs of states.


• The Commonwealth Parliament can create uniform laws across the nation so there is consistency and a clear understanding of the law, regardless of which state a person resides in or travels to.


• If the Commonwealth Parliament created all the laws for the nation, this would eliminate any areas of conflict that may arise in areas of concurrent law-making between the Commonwealth and the states.

• Having only the Commonwealth Parliament make laws for the entire nation would cause inefficiency in the law-making process because it would take a considerable time for laws to be drafted, debated and voted on.

• If the Commonwealth Parliament were to make laws for the entire nation, it is likely that the specific needs of any of the states would be missed and the laws made might not be adequate for their particular circumstances.

• Having residual law-making powers held solely by the states allows them to make laws that are specific to the needs of the state, which provides for more efficient and effective law-making. Each state can have their own law on the same issue (for example, criminal law) and make changes to this as new situations or needs arise.

• Having areas of concurrent law-making power provides the states with flexibility in law-making in areas where the federal government has not legislated but where a state identifies a need.

• Concurrent law-making allows the Commonwealth to make laws that apply nationwide and it can override state legislation when it is in the best interests of the nation.


10.5 Section 109 of the Australian ConstitutionPages 326–328


Define and explain

1 Is Section 109 of the Australian Constitution relevant to:

a inconsistencies between Commonwealth laws and territory laws

Section 109 is relevant to inconsistencies between Commonwealth and state laws. As the Commonwealth has exclusive power to make laws in territories, there will not be any inconsistencies as the laws are made by the Commonwealth.

b inconsistencies between different state laws? Give reasons for your answer.

Different states can have different laws. Section 109 deals with inconsistencies between a Commonwealth law and a state law.

2 Explain the significance of Section 109 in relation to the division of law-making power between the Commonwealth and state parliaments.

Section 109 applies to a situation where there is a conflict between a Commonwealth law (Law A) and a state law (Law B). This situation normally arises where Law A and Law B have been made in the same area of concurrent power as both the Commonwealth and state have the power to make law in that area. In this instance, the two laws may be inconsistent, and a person may be unable to abide by both of them, thus creating an issue as to which law should be followed.

3 To what extent does Section 109 of the Australian Constitution restrict the state parliaments in law-making? Give reasons for your answer.


• Section 109 restricts the states’ concurrent law-making power by providing that Commonwealth law will prevail when there is an inconsistency between the two laws (Commonwealth and state).

• For a state law to be voided and the state’s law-making powers restricted, the law must be challenged in the High Court by a party with standing.

• States are still able to pass conflicting laws; this will only become a restriction once challenged in the High Court.

• A restriction on the state is not absolute; only the inconsistent sections of the legislation are made redundant. Therefore, depending on the degree of inconsistency in the legislation, the entire statute may not be voided.

• Section 109 does not restrict the states in terms of their residual law-making power because they retain full authority over these areas.


• The states’ law-making powers are restricted due to exclusive law-making powers (which are held solely by the Commonwealth Parliament) and Section 109 has no impact here.

• Section 109 can act as a restriction on the states after the law has passed. This is because the Commonwealth law does not have to have previously existed for it to later restrict the states if an inconsistency occurs.


4 Provide two reasons why the original writers of the Constitution may have included this provision.

The original writers may have included this provision to deal with inconsistencies at a state and federal level. If two laws clash and both cannot be abided by, then this will affect the rule of law as laws will be unclear and not easily understood.

A second reason would be to restrict the power of the states. By stating that the Commonwealth law will prevail, the Constitution determines that the states’ power is curtailed when it comes to concurrent law-making powers.

5 Read the legal case McBain v Victoria.

a What were the two statutes that were said to be in conflict?

Infertility Treatment Act 1995 (Vic) and Sex Discrimination Act 1984 (Cth)

b How were they in conflict?

The Infertility Treatment Act stated that a woman could not receive IVF unless she was married to a man or in a de facto relationship with a man. The Sex Discrimination Act states that you cannot discriminate on the basis of marital status, with IVF being one of the areas covered.

c Why was Dr McBain affected by this potential inconsistency?

Dr McBain was affected as he was a specialist IVF doctor. If a single or lesbian patient visited him, he could not provide IVF services without breaching at least one of the laws.

d Why was Leesa Meldrum part of the case?

Dr McBain was required to establish that there was a specific patient who was being denied the service and was impacted by the inconsistency. Leesa Meldrum was a patient of Dr McBain’s; therefore, her situation was considered as part of the case.

e What was the decision of the Federal Court?

The Federal Court found that the laws were inconsistent; therefore, pursuant to Section 109, the relevant provision in the Victorian Act was found to be invalid.


6 If Victoria passed a law that allowed for a 15-year-old to marry, would this law be operable? Discuss.

No, this law would not be operable because it conflicts with the Commonwealth marriage law.


Under Section 109, in areas of concurrent law-making power (which includes marriage) if there is a conflict between state and Commonwealth law, the Commonwealth law will prevail to the extent of the inconsistency. The state law, or its inconsistent parts, will then become redundant.

However, for this to occur the legislation would need to be challenged in the High Court by a party with standing. Depending on the other parts of the law in question, the entire law may not be inoperable but the specific sections that conflict with the federal law would be [inoperable] (including the age at which a person is able to marry).


10.6 The bicameral structure of the Commonwealth ParliamentPages 329–333


Define and explain

1 What is a bicameral parliament?

A bicameral parliament is a parliament that has two houses (or chambers): an upper house and a lower house.

2 What section of the Australian Constitution requires the Commonwealth Parliament to be bicameral?

Section 1 requires that there must be two houses in the Commonwealth Parliament.

3 Briefly describe two other sections of the Australian Constitution that set out some of the requirements in relation to the composition of the two Houses.

Section 7 of the Australian Constitution provides for the composition of the Senate to be comprised of senators from each state, directly chosen by the people, for a six-year term

Section 24 of the Australian Constitution provides for the composition of the House of Representatives to be directly chosen by the people.

4 Explain how the bicameral structure of parliament acts as a check in law-making.

The bicameral structure of parliament means there are two houses – an upper and lower house. When legislation is initiated and passed in one house, it must be reviewed, scrutinised and passed by the second house for it to become law. This provides a system of checks and balances because no law can be passed without being considered by all members of parliament. This scrutiny is often conducted by the upper house since the lower house initiates the majority of legislation because it is the house that forms government. This ensures that the government cannot pass any laws without first getting a majority vote from both houses. Further, any amendments made to legislation need to be approved by both houses for successful passage of a bill. In addition, the Senate at the federal level has the responsibility of acting as a ‘states’ house’ when considering proposed legislation. This provides an additional check on the law-making process because it ensures that the needs of each state are being considered when voting on legislation.


5 Research the present make-up of the Senate in terms of which parties they represent (if any). Identify:

a two senators who are likely to vote on bills according to the wishes of their party


b two senators who are more likely to vote on bills according to the interests of their state. Give reasons for your answer.



6 Conduct some research on how the Queensland Parliament operates as a unicameral parliament.

a What is their law-making process?

Bills are written by a Parliamentary Counsel and presented to the Legislative Assembly, where they are debated and voted on. Three separate readings are conducted in parliament before the Ministers vote. The bill is then sent to the Governor for royal assent.

b Is there any check on law-making by another house or committee?

There is no other house or committee that reviews the bill.

c How effective do you think a unicameral parliament is in acting as a check on law-making? Discuss.


• If the government holds a strong majority in the house, there will be minimal scrutiny of a bill and no way of ensuring that the government is not abusing its law-making powers.

• If the government holds a strong majority in the house, then there will be minimal scrutiny of a bill and no way to ensure that the views of other groups (aside from the majority) are considered.

• If the government does not hold a strong majority in the house, there will be a greater level of debate and negotiation before passing a bill because the government will need to secure the votes of the opposition or other parties/independents to pass the legislation. This can provide for greater scrutiny of the bill.

• Even if the government holds a majority, it is still subject to the wishes of the people. Therefore, if legislation is passed that does not reflect the views and values of the majority of voters, the government risks being voted out at the next election.


7 Read the case study ‘Amendment to Section 18C rejected’.

a What was the purpose of this bill?

The purpose of this bill was to amend Section 18C of the Racial Discrimination Act 1975 (Cth) so that instead of banning behaviour that would ‘offend, insult, humiliate’ a person due to race, colour or ethnic origin, it bans behaviour that would ‘harass’ a person.

b In which House was the bill introduced?

The bill was introduced in the House of Representatives.

c Explain why there was opposition to the amendment to Section 18C.

There was opposition to the bill as it was seen as ‘watering down’ the law by allowing racially discriminatory comments to be made without consequences.

d Discuss whether you believe this case study serves as an example of the Senate acting effectively as a house of review.



• While this case provided for scrutiny of the proposed amendment, because the Senate was not comprised of a majority from the government, a broader range of views was taken into consideration when debating the bill.

• Even though the government reflects the views of the majority of voters (in theory), due to the hostile senate, it was unable to pass this legislation. The make-up of the Senate reduced the parliament’s effectiveness to pass legislation.

• The composition of the Senate was a result of voting at the previous election and the strong conflicting views of society were reflected in the difficulty to pass this legislation, which did not meet with the majority view.

• This case reflects strong viewpoints on both sides of the issue and demonstrates how legislation may not be passed when the country is not ready to accept a change.

• One of parliament’s roles as law-maker is to pass legislation that brings about necessary social change. The inability of the government to pass this legislation – due to the composition of the upper house – reduced its ability to effectively promote social change on this occasion.

8 Read ‘The politics of WorkChoices legislation’.

a Outline the purpose of the law.

The law was introduced with the purpose of increasing flexibility for small and medium-sized businesses to hire and dismiss staff.

b Explain why there was opposition to the law in the community.

There was opposition to the law because it was seen as taking away rights from employees and giving too much power to employers in small to medium-sized businesses. The law removed the ability of an employee to contest their dismissal if their employer employed less than 100 members of staff. The law also reduced the ability of trade unions to enter workplaces and undertake industrial action. This meant that employees in small and medium-sized businesses were not afforded the same protections as employees of larger sized businesses.

c Discuss the extent to which this case study highlights weaknesses in the bicameral nature of parliament acting as a check on parliament in law-making.


• Because the government held a majority in both houses there was less scrutiny of the bill in the upper house and a ‘rubber stamp’ situation occurred where ministers voted on party lines.

• The composition of both houses was a result of being directly elected by the people. Therefore, the strong government position in both houses reflected the views of the majority of voters at the time.

• The upper house was unable to fully perform its role as a house of review because the needs and interests of sections of the general public (other than those who formed the majority) were not able to be adequately represented.


9 Do you think that the existence of minority parties and independent Senators is increasing or decreasing checks and balances on law-making in the Commonwealth Parliament? Discuss.


• Having Senators who represent minority parties and who are independent means that the different viewpoints they represent are given voice in parliament; this increases the degree of scrutiny a bill undergoes.

• However, when these senators have won their seat with minimal votes, they only reflect the views of a small percentage of the population.

• When there is not a clear, strong majority in the Senate (held by the government or opposition) the views represented by the minor parties and independents become very influential in passing legislation. As a consequence, legislation may be amended to suit the specific needs of these minorities/independents and this can hinder the parliamentary process of checks and balances. The resulting legislation may be more in line with the views of a small subset of the population rather than the views of the majority of citizens.

• Having minority parties and independents in the Senate can increase debate regarding the various details in proposed legislation and highlight issues to the wider public through this scrutiny.


10.7 The separation of executive, legislative and judicial powersPages 334–339


Define and explain

1 Identify the three types of powers set out in the Australian Constitution and briefly describe each of them.

The three powers are executive, legislative and judicial.

Executive power is vested in the Governor-General and is the power to administer the laws and manage the business of government.

Legislative power is the power to make laws and is vested in the Federal Parliament.

Judicial power is vested in the High Court and other federal courts, and is the power to enforce the law and settle disputes.

2 Explain the reasons for the separation of powers in the Australian parliamentary system.

One reason for the separation of powers is to ensure that no one body holds absolute power or control over the functions of the political and legal systems. This is achieved by preventing power from being concentrated into one set of hands through specifying which body holds the legislative, the executive and the judicial powers (the parliament, the government and the High Court and other courts respectively).

Another reason is to provide protection for individual rights by ensuring a system of checks and balances operates in regards to the power of the Commonwealth Parliament. This system of checks and balances operates by having different bodies responsible for making the law (legislative), administering the law (executive) and enforcing the law (judicial) so that if the actions of one body infringe on individual rights this can be detected and corrected by the actions of another body. For this reason the independence of the judiciary must be preserved to ensure it can hold parliament to account if laws are passed that infringe on individual rights.

3 Does the Australian Constitution separate powers at a state level? Why not?

No, the Australian Constitution does not separate powers at a state level – the Australian Constitution is largely concerned about the establishment of the federal system of government and its law-making powers rather than dictating how the states operate. The principle is also not enshrined in the state constitutions.

4 Explain how the legislative and the executive powers overlap in reality.

The executive and legislative powers overlap as, in practice, the executive power is placed in the hands of the cabinet (the prime minister, senior ministers and government departments). The cabinet also has legislative power as part of the parliament.



5 Read the legal case Besim and ‘M H K’.

a Outline the key facts of this case.

The Supreme Court of Victoria heard an appeal from the Commonwealth Director of Public Prosecutions that the sentences that had been imposed for offenders pleading guilty to terrorist offences were too lenient.

The Supreme Court heard the appeal and reserved its judgment on the decision. Between the appeal and the judgment being handed down, a number of government ministers made comments condemning the Supreme Court for advocating for lighter sentences for terrorists.

The ministers were asked to appear before the Court to explain why they should not be charged with contempt of court.

The ministers apologised unconditionally after watching the hearing and reviewing the transcripts.

b Why did the Court of Appeal ask the relevant ministers to appear at Court?

The Court of Appeal asked the ministers to appear to explain why they should not be referred to the prosecution for contempt of court.

c Why did the ministers apologise?

The ministers stated they were wrong to have made the comments based on hearing and reviewing the transcripts.

d Do you think the ministers should have made the comments in relation to these cases? Give reasons.



6 Discuss the extent to which the overlap between the executive and the legislative powers of government decreases the ability of the separation of powers to act as a check on parliament in law-making.


• The combination of the legislative power with the executive power decreases the ability of the separation of powers to act as a check and balance because administering the law is controlled by cabinet which is involved in the passage of legislation.

• When the government holds a majority in the upper house their ability to act as a check and balance is further reduced because the body that will administer the law also holds the legislative power, thus reducing the degree of scrutiny applied to proposed legislation.

• Despite the overlap, proposed legislation is still open to scrutiny during its passage through parliament and therefore provides for checks and balances.


• When the upper house is controlled by the opposition this provides for a greater degree of scrutiny of legislation and this promotes the system of checks and balances.

• The judiciary remains independent of both the legislative and the executive and therefore plays a significant role in providing checks and balances against the abuse or misuse of power. If laws passed and implemented by the legislative and the executive are not in line with their constitutional powers, the courts are able to declare these laws unconstitutional without being influenced by politics.

• Judges are appointed by the executive. This could be seen as the government of the day influencing the composition of the benches of superior courts, which could influence the way a court rules on a given case.

7 Should there be a ban on politicians criticising judges for decisions made in cases? Discuss.


• Criticism highlights issues within the law and promotes community debate.

• When politicians make criticisms they can gauge community views and consider whether legislation needs to be implemented or amended.

• Judges are not elected and their role is to apply the law to the case before them. Criticising their judgments will not change the outcome of the case.


10.8 The express protection of rightsPages 340–347


Define and explain

1 Define the term ‘express rights’.

Express rights are rights that are specifically listed in a document or constitution.

2 Outline three express rights that exist under the Australian Constitution.

Student answers will vary but may outline three of the following express rights:

• the right to freedom of religion – this is entrenched by preventing the Commonwealth from making laws in relation to religion

• the right to free interstate trade and commerce

• the right to receive ‘just terms’ when property is acquired by the Commonwealth

• the right to trial by jury for indictable Commonwealth offences

• the right not to be discriminated against on the basis of the state where you reside.


3 For each of the following cases, state:

• how the case highlights the role of express rights in providing a check and balance on the exercise of authority by the legislature

• the outcome of the case, if available

• the significance of the case.

a Cole v Whitfield• how the case highlights the role of express

rights in providing a check and balance on the exercise of authority by the legislature

This case demonstrates that the legislature is acting within the scope of the express right. Through this case, the law-making powers of the state and the scope of Section 92 were clarified. As a consequence, this case demonstrated that a state is within its law-making power to place restrictions on interstate trade as long as it does not discriminate between states.


This case did not treat trade from different states differently but, rather imposed a restriction on trade that was applied to all states equally.

• the outcome of the case, if available It was found that restrictions imposed were constitutional because they did not impose a burden on, or discriminate against, interstate trade.

• the significance of the case This case is significant because it limited the scope of Section 92 whereby it allows for restrictions on interstate trade to be acceptable as long as they do not impose a burden on interstate trade.

Therefore, this case placed limitations on the express right to free trade and commerce across states.

The decision clarified that the phrase ‘absolutely free’ in Section 92 was not a guarantee of absolute freedom of restrictions for a personal individual right, but rather provided for economic free trade zones.

b R v Loubie• how the case highlights the role of express


This case highlights how the express right to be free from discrimination on the basis of state residence provides a check on the law-making power of each state, ensuring that laws passed do not treat individuals differently depending on which state they reside in, and ensuring a state does not discriminate against a resident of another state.

If it is found that a state has passed such legislation, this can be challenged in the High Court and the High Court can declare such legislation as unconstitutional and invalid.

• the outcome of the case, if available It was found that the relevant section of the Queensland legislation was invalid because it breached Section 117 of the Australian Constitution and bail cannot be denied on the basis that the accused resides in a different state.

• the significance of the case This case is significant because it clarified © Oxford University Press 2018 22Justice & Outcomes VCE Legal Studies for Units 3 & 4 Teacher obook assess ISBN 9780190310394Permission has been granted for this page to be photocopied within the purchasing institution only.Version 2.0

the application of Section 117 and demonstrates that state legislation needs to not treat people differently depending on whether they reside within the state or interstate, and ensuring the express right to freedom from discrimination on the basis of state residence is upheld.

c Brown v The Queen• how the case highlights the role of express


This case highlights how the principles of justice are provided for through the requirement to have a trial by jury for Commonwealth indictable offences.

This requirement places a check on the law-making powers of the legislative because it supersedes any legislation passed by the Commonwealth Parliament. This is evident because even though the Juries Act 1927 (Cth) permitted an accused to elect to have a trial by judge alone, Section 80 overrode this clause, demonstrating that the legislative did not have the law-making authority to circumvent this express right.

• the outcome of the case, if available It was found that, due to Section 80, an accused charged for indictable Commonwealth offences had to be tried by a jury and could not elect to be tried by a judge alone.

• the significance of the case This case is significant because it clarified the application of Section 80 and confirmed that this express right must be upheld, even when the defendant is willing to relinquish this right.

d Betfair Pty Limited v Western Australia.

• how the case highlights the role of express rights in providing a check and balance on the exercise of authority by the legislature

This case demonstrates that the express right protected under Section 92 of the Australian Constitution ensures that a state parliament’s legislature must ensure that statutes passed do not disadvantage companies that are incorporated in a different state and, if such legislation is passed, the High Court can declare such


legislation as unconstitutional and invalid.

This protects against a state parliament passing legislation that treats interstate trade differently to trade conducted within the state.

• the outcome of the case, if available The Western Australian legislation (Betting Control Act 1954 (WA)) was found to be invalid because it discriminated against a company incorporated outside of that state and was therefore deemed invalid.

• the significance of the case This case is significant because it demonstrates that state legislation needs to not burden or disadvantage traders from outside that state to ensure the express right to free trade and commerce is not contravened.

4 Look back at the legal case JT International SA v Commonwealth.

a Which section of the Australian Constitution is this case relevant to?

Section 51(xxxi) – the right to receive ‘just terms’ when property is acquired by the Commonwealth

b What was the property that was the subject of the case?

The property was the intellectual property rights of the tobacco companies.

c Distinguish between taking property and acquiring property.

An acquisition of property must involve the Commonwealth gaining a proprietary benefit or interest in that property. In contrast, taking property can include regulating that property and therefore restricting enjoyment, without the Commonwealth gaining a benefit or interest.

d Explain why no property was deemed to be ‘acquired’ in this case.

The property was not considered to have been acquired as the Commonwealth did not gain a proprietary interest. They were merely regulating the property rights but not gaining an interest.

e In what way did this case involve a check on the authority of the Commonwealth?

This case placed a check on the Commonwealth by defining the circumstances in which they would be considered ‘acquiring property’. However, it could be argued this case extended the Commonwealth’s power by narrowing the scope of what is considered ‘acquisition’.


5 ‘Express rights contained in the Constitution are so few, and limited in scope. They do not act as an effective check on parliament in ensuring our freedoms are protected.’ Discuss.

Student answers will vary, but should include one or more of the following points:© Oxford University Press 2018 24Justice & Outcomes VCE Legal Studies for Units 3 & 4 Teacher obook assess ISBN 9780190310394Permission has been granted for this page to be photocopied within the purchasing institution only.Version 2.0

• There are only five express rights, which is a limited number.

• The express rights are limited in nature. For example, Section 80 only applies to Commonwealth indictable offences with the majority of indictable offences being state-based. Therefore there is no protection for the right to a trial by jury under the Constitution for these cases.

• There are other ways by which the Constitution protects our freedoms, including through implied rights and structural protections.

• Those rights that are explicitly stated in the Constitution protect those freedoms strongly because they cannot be changed except through a successful referendum, which requires the double majority provision to be fulfilled.

• The rights can only be changed by holding a referendum and this could be difficult to pass. Therefore, it would be difficult to amend or add additional express rights to further protect our freedoms.

• Any breach of these express rights can be taken to the High Court and rectified and this provides strong protection of our freedoms.

• The express rights do not prevent the Commonwealth Parliament from passing a law that breaches one of them and it will require a party with standing to take the matter to the High Court to have the situation rectified.

• The costs involved in a High Court case are high and may act as a disincentive to pursue the matter.

• These express rights are limitations on the actions of the Commonwealth Parliament Therefore, they protect our freedoms in relation to the rights and what the Commonwealth Parliament is empowered to do.

• The High Court is able to declare law ultra vires if it contravenes an express right and in this way it protects our freedoms.


10.9 The role of the High Court in interpreting the Australian ConstitutionPages 348–351


Define and explain

1 Outline the jurisdiction of the High Court in relation to the Australian Constitution.

The High Court has original jurisdiction to hear disputes arising out of the Australian Constitution or its interpretation.

2 Define the following terms:

a ultra vires

Ultra vires is a term used to describe situations when the parliament has passed a law beyond (i.e. outside of) its own power. It is a Latin term literally meaning ‘beyond the powers’.

b implied rights.

Implied rights are rights or freedoms that are not expressly stated in the Australian Constitution but are considered to exist through interpretation of the Constitution by the High Court.


3 ‘Given the nature of cases on the Australian Constitution that are heard by the High Court, it is important that the judges are independent of the political process and cannot be influenced by populism.’ Explain this statement.

This statement refers to the need for the High Court to remain unbiased in their interpretation and application of constitutional law. In hearing and ruling on constitutional cases, the High Court has a responsibility to protect the Australian Constitution and provide for a check on any abuse of power that may have occurred. Consequently, the High Court needs to be able to make a decision based on the facts of the case and how these apply to the relevant section(s) of the Australian Constitution. While their interpretation of the Constitution can affect its day-to-day application, the interpretation is not influenced by populist views or particular political agendas, but rather is based on a specialised understanding of constitutional law and ensuring the intentions of the founders of the Constitution are upheld while keeping the document relevant to the Australian people.

4 a Explain the High Court’s decision in the case of Victoria v Commonwealth.

The High Court confirmed the right of the Commonwealth Parliament to make tied grants. This allows the Commonwealth Parliament to move into areas of residual law-making power when it is providing money to a state because the Commonwealth Parliament could attach conditions to how that money is to be spent. Therefore, funding can be provided to a state in an area of residual power, but the state does not retain the authority to decide how to spend the funds. Instead, the Commonwealth can stipulate which specific projects the funds are to be used for within that area of residual power.


b To what extent has this case been significant in allowing the Commonwealth to influence the states’ exercise of residual powers? Explain your answer.


• This case is significant because it allows the Commonwealth Parliament to move into an area of residual power (areas usually under sole control of the states) and stipulate how the funds given are to be spent.

• It provides for the Commonwealth to be able to provide money to states with conditions attached.

• If states wish to accept the grant (money) from the Commonwealth Parliament they need to also accept any conditions that the Commonwealth attaches to the grant. This means they have relinquished some control over that area of law-making in relation to those specific funds.

• The states still retain control over that area of residual law-making power for all other matters.

• The states also retain control over all other areas of residual power that are not connected to a tied grant.


5 Read the legal case Australian Capital Television Pty Ltd v Commonwealth.

a Outline the key facts of the case.

The case concerned political advertising on radio and TV during election periods. The Commonwealth passed legislation that only allowed political parties that already had members in parliament to advertise. It was found to be invalid as it constrained the implied right of freedom of political communication.

b Explain why freedom of political communication is important in a modern society such as ours.

Australia is a representative democracy; therefore, to ensure that people are fully informed when making choices about who is elected to government, there needs to be freedom of political communication. This allows people to make comments on political issues.

c Do you believe that political advertising during an election campaign enhances the ability of electors to be informed about the major issues at stake in an election? Explain.


d Collect a range of media sources (for example, newspapers, online opinion pieces and blogs), which contain criticism of political figures. How are such comments important as a means of allowing electors to scrutinise the actions of politicians? Give reasons for your answer.


6 With reference to at least one legal case you have studied, evaluate the role played by the High Court in acting as a check on parliament in law-making.



10.10 The requirement for a double majority in a referendumPages 352–355


Define and explain

1 Outline the three stages required for a change to the wording of the Australian Constitution.

The three stages that changes must pass through are the parliament, the people and the Governor-General.

First, the suggested change must pass through both houses of parliament for it to be put to the people.

Next, the people (being the voters of Australia) will vote on the change. The change needs to achieve the double majority requirement – a majority of voters in Australia must answer ‘yes’, and a majority of voters in a majority of states must answer ‘yes’.

Lastly, the change will be presented to the Governor-General for approval.

2 Explain the double majority requirement of a referendum.

In order to achieve a double majority, a majority of voters in the whole of Australia and a majority of voters in a majority of states must vote ‘yes’. This means that more than 50% of all electors in Australia must vote ‘yes’ to the change. In addition, more than 50% of the electors in at least 4 out of 6 states must also vote ‘yes’.

3 Does every single person in Australia vote on a referendum? Give reasons.

Only those required to vote for the election of members of the House of Representatives are required to vote. This is generally people over the age of 18 who are on the electoral role and are an Australian citizen.

4 Explain one reason why the Constitution contains the requirement that there must be a majority of voters in a majority of states for the proposal to succeed.

The majority of voters in a majority of states requirement ensures that smaller states have an equal say and that the larger states do not dominate the voting. If it was just ‘a majority of voters in Australia’ that was required, potentially all of New South Wales and Victoria could approve the change, but Tasmania and South Australia may disapprove, which would mean they would be disadvantaged.


5 Suggest two reasons why the writers of the Australian Constitution required that the people be directly involved in deciding whether the wording of the Constitution should be changed.

One reason to have the people directly involved in deciding on alterations to the Australian Constitution is that, in a democratic society, it is vital for voters to have a clear voice in deciding how the country is run. This protects the principle of representative government whereby the views and values of the people are reflected in the actions of the government. Because the Australian Constitution is the governing document


for Australia’s political and legal systems, it is essential that any changes to this document should be approved by the people in order to uphold the democratic system.

A second reason is that requiring a national vote to make changes to the Constitution ensures that a check on the law-making powers of parliament is occurring. Through the double majority provision, any change made to the wording of the Australian Constitution has to be approved by both a majority of Australian voters nationwide and a majority of voters in a majority of states. This ensures that the Commonwealth Parliament cannot make changes at will. It must put these changes to the people to ensure that it has their overall support. Further, each state has an equal representation in the vote to protect against certain states being unfairly affected by the proposed change.

6 Prime Minister Turnbull suggested in 2017 that the term of the Federal Parliament should be four years, not three years. Conduct some research to determine what role the people who have in relation to this change, and explain that role.

The requirement that the Federal Parliament be elected every three years (or not more than 3 years) is enshrined in the Constitution. Changing the term to four years would require a referendum – and therefore the people would need to vote on the change through the referendum process. This would mean that the double majority requirement would need to be satisfied.

7 There has been some talk for years about recognising Aboriginal and Torres Strait Islander peoples in the Constitution. Comment on the likely outcome of the people on such a referendum.


• Referendums have a low success rate due to the difficulty of meeting the double majority provision. To date, only eight out of a total of 44 referendums have been accepted.

• The 1967 referendum concerning the rights of Indigenous people passed with the highest ‘yes’ vote to date. A total of 90.77% of voters voted in favour of changes to the Constitution as well as all six states. This demonstrated strong support from the community in relation to the fair treatment of Aboriginal and Torres Strait Islander peoples and could indicate similar support for a referendum looking at recognising them in the Australian Constitution.

• In Australia, there is a significant need to repair damaged relationships in relation to Aboriginal and Torres Strait Islander peoples, which could prompt a favourable outcome. This would be due to both widespread community support as well as bipartisan support, and these are key factors in the success of a referendum.

• The timing and costs associated with a referendum could impact on its success. Generally, referendums are held at the same time as elections to cut down on the expense. However, this may result in the voting public being more focused on the election than the referendum issue.

• Information regarding the proposed change would need to be clear to help alleviate voter confusion. If voters are unclear regarding the pros and cons of a proposed change, they are more likely to vote ‘no’.

• The Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth) was passed with bipartisan support, which demonstrates that the Commonwealth Parliament is committed to putting forward a proposal to the people for constitutional recognition. The bipartisan support demonstrated should assist in achieving the double majority provision because the information presented to the public is consistent and there is less room for confusion.

Analyse and evaluate© Oxford University Press 2018 29Justice & Outcomes VCE Legal Studies for Units 3 & 4 Teacher obook assess ISBN 9780190310394Permission has been granted for this page to be photocopied within the purchasing institution only.Version 2.0

8 To what extent could it be argued that this model for change gives too much power to the smaller states? In your answer, refer to the 1977 referendum on simultaneous elections.


• This model allows for smaller states to be heard on an equal basis with larger states when deciding on changes to the Australian Constitution.

• The first part of the double majority provision (majority of voters nationwide) allows for equal weighting to all voting members of the population.

• The second part of the double majority provision (majority of voters in a majority of states) allows for equal weighting to each state. Rather than giving too much power to smaller states, this brings them up to the same level as larger states.

• If power is determined on a per capita basis then, yes, this model provides greater power to the states with smaller populations.

• The 1977 referendum on simultaneous elections was rejected with only three states (Victoria, New South Wales, South Australia) voting in favour (the proposal had the 62.22% ‘yes’ vote). In this situation, the smaller states had a large impact on not passing the referendum.

• The provision only requires a majority of states, which is at least four out of six. Not all states have to support the change for it to be successful.

9 Discuss the extent to which the 1951 referendum regarding the Communist Party highlights the importance of the High Court in hearing challenges regarding the validity of legislation.

The High Court serves as a check on law-making power and ensures that inappropriate laws are not made and passed through parliament. In the 1951 referendum, the High Court’s decision prevented the parliament from implementing a law that was not approved by the voters of Australia. With only 49% of the nation and three out of six states supporting the law, the High Court’s intervention ensured that the parliament did not enforce legislation that Australia did not agree with.

10 With reference to the 1951 referendum, evaluate the extent to which the double majority requirement acts as a check on parliament in law-making.


• It ensures that parliament cannot make changes to the Australian Constitution without the support of the people (through requiring a majority of voters nationwide to vote ‘yes’) thus upholding a representative government.

• It ensures that parliament cannot make changes to the Australian Constitution without giving equal voice to residents of each state (through requiring a majority of voters in a majority of states to vote ‘yes’) which protects against certain states being unfairly affected by a proposed change.

• It ensures that the government cannot make changes to the Australian Constitution to increase their law-making powers without having approval by the people.

• It can hinder the parliament in law-making due to the severity of the requirements that have to be met.


• The 1951 referendum shows how the double majority provision acted as a check on parliament. The people did not approve a change to the Constitution, which would have resulted in the government being able to restrict the freedoms of speech and association. As the matter had already been taken to the High Court and deemed to be unconstitutional, the government attempted to alter the Constitution so they could legally ban the Communist Party of Australia.


Student book answersChapter 10 ReviewPages 356–357

Revision questions1 With reference to the three powers, explain the purpose of the separation of powers.

[4 marks]

The purpose of the separation of powers is to ensure that no one body has absolute power or control over the functions of the political and legal systems. To this end, the powers are split between the legislative, executive and judiciary. The executive has the power to administer laws and manage the business of government, the legislative makes laws and the judiciary enforces the law and settles disputes.

2 Outline two roles played by the Crown in the Commonwealth Parliament in law-making.

[4 marks]

Student answers will vary but may include:

• The Crown grants royal assent and approves bills before they become law.

• The Crown can withhold royal assent and refuse to approve a bill and make it a law.

• The Crown appoints the Executive Council, which is comprised of the leader of the government and senior ministers.

3 Explain the role that the High Court plays in relation to the Australian Constitution. [4 marks]

The role of the High Court is to interpret the Australian Constitution. It does this in three ways. The High Court acts as a guardian of the Australian Constitution by explaining what it means and how it should be interpreted. The High Court acts as a check on any abuse of power by hearing matters and making rulings on whether a law is constitutional. The High Court also gives meaning to the words of the Constitution and applies those words to the case.

4 With reference to one case you have studied this year, explain the significance of Section 109 of the Constitution.

[5 marks]

Section 109 of the Australian Constitution helps resolve conflicts and inconsistencies between state and Commonwealth laws. If a state law is inconsistent with a federal law, the federal law shall prevail. An example of this was in McBain v Victoria, where a state law prohibited an IVF doctor from providing treatment to a single woman. However, the federal discrimination laws prevented the doctor from discriminating on the basis of marital status. Therefore, he could not comply with both laws, and the federal law prevailed.


5 Outline the double majority requirement for a referendum. With reference to one referendum you have studied this year, explain how the double majority requirement operates as a check on parliament in law-making.

[6 marks]

A double majority means that a majority of voters in the whole of Australia and a majority of voters in a majority of states have voted ‘yes’ to the constitutional change.

In 1951, a referendum was held to outlaw the Communist Party in Australia. Forty-nine per cent of the whole of Australia voted ‘yes’, but only 3 out of 6 states had a majority voting ‘yes’. This meant that the referendum failed narrowly. The double majority places a check on parliament by putting the vote to the public to canvas their views. In this case, the High Court had rejected the parliament’s laws to ban the Communist Party and therefore putting the vote to the public prohibited an abuse of power.

6 ‘The power of the High Court to create implied rights in the Australian Constitution operates as an important check on the authority of the executive and the legislature.’ Discuss this statement with reference to one case that you have studied this year.

[6 marks]


7 Evaluate the ability of express rights to restrict the Commonwealth Parliament from legislating to restrict those rights.

[6 marks]


Practice assesment task questions1 Define the term ‘royal assent’.

[1 mark]

Royal assent is written approval, given by the Queen’s representative on her behalf, for a bill to become a law after it has been passed by both houses of parliament.

2 Describe the law-making powers of the Commonwealth Parliament, using examples.

[4 marks]

The Commonwealth Parliament has exclusive law-making powers and concurrent law-making powers.

Exclusive powers are law-making powers solely held by the Commonwealth Parliament, meaning that only the Commonwealth Parliament can make laws in these areas. Examples of exclusive powers include the power to make law on currency, coinage and legal tender; defence (raising a naval or military forces); customs and excise (taxes on exports); and naturalisation (becoming an Australian citizen).

Concurrent powers are law-making powers held by both the Commonwealth and State parliaments, meaning that both the Commonwealth and State parliaments have the power to make laws in these areas. Examples of concurrent powers include the power to make law on marriage and divorce; taxation; trade; and census and statistics. In situations where a state parliament makes a law in a concurrent area of power that is inconsistent or conflicts with an existing Commonwealth law, Section 109 of the Australian


Constitution states that the Commonwealth law will prevail and the state law will be invalid (or void) to the extent of the inconsistency.

3 Outline the structure of the Commonwealth Parliament.

[3 marks]

The Commonwealth Parliament consists of the House of Representatives (the lower house), the Senate (the upper house) and the Crown or Queen (who is represented by the Governor-General, who is currently Sir Peter Cosgrove).

4 With reference to the above article, outline one role played by the Senate in law-making.

[3 marks]

One role of the Senate (the upper house in federal parliament) is to assist in the process of making laws because all bills (other than appropriation bills) can be introduced into the Senate. In fact, Senator Lambie introduced her bill proposing that all full face coverings, including the burqa, be banned in public if Australia’s terror threat level is raised to ‘probable’ into the upper house. In situations such as this, where bills are introduced into the upper house, they must be discussed, debated and passed by a majority of senators before they can progress to the lower house. A bill must be passed by both houses before becoming law.

Interestingly, in reality, most bills are introduced by the government into the lower house, meaning that the Senate generally acts as a ‘house of review’, thoroughly discussing and scrutinising bills that have already been passed by the lower house.

Note: To be awarded full marks, students must relate their selected role of the Senate to the article.

5 Senator Lambie proposed to introduce a private members’ bill. Describe the nature of this type of bill and explain whether such bills are typically passed by the Commonwealth Parliament.

[4 marks]

A private member’s bill is a bill that is introduced into the parliament without the support of the government, and as such does not reflect the policy of the government. Given these bills are often introduced by the opposition, minor parties or independent members, they are unlikely to be passed by the Commonwealth parliament and become law because, without the support of the government, they are unlikely to succeed in the House of Representatives (lower house), where the government holds a majority of the seats (or in the case of a minority government, governs with the support of minor parties and/or independent members).

6 A legal commentator said, ‘If this proposed law was passed, it would most likely face constitutional challenge on the grounds that it interferes with express rights.’

a Identify which court would most likely hear such a constitutional challenge.

[1 mark]

The High Court of Australia would most likely hear such a constitutional challenge because, in accordance with Section 76 of the Australian Constitution, it is the only court with the power to hear and determine disputes relating to the interpretation of the Constitution.

b On what grounds would such a challenge be heard? In your answer, refer to any express right that may be relevant in this case.

[3 marks]© Oxford University Press 2018 34Justice & Outcomes VCE Legal Studies for Units 3 & 4 Teacher obook assess ISBN 9780190310394Permission has been granted for this page to be photocopied within the purchasing institution only.Version 2.0

If the Criminal Code Amendment (Prohibition of Full Face Coverings in Public Places) Bill 2017 was to pass, it could possibly be challenged on the grounds that it was unconstitutional. More specifically, it could be argued the bill breached Section 116 of the Australian Constitution, which expressly (or explicitly) protects the right to freedom of religion by preventing the Commonwealth from making laws establishing a religion, imposing any form of religious ceremony and prohibiting the exercise of any religion.

It could be argued that any law prohibiting the wearing of religious garments (like burqas, niqabs or full face veils) would breach Section 116.

c To what extent does any possible challenge highlight the checks that are provided for by the Australian Constitution? Give reasons.

[5 marks]

The sample response below includes a range of ways a court challenge highlights the checks provided for by the Australian Constitution. To be awarded 5 marks, students should discuss at least two of these.

Allowing individuals, groups and state, territory and Commonwealth bodies to challenge the constitutional validity of law made by the Commonwealth Parliament highlights a range of checks on legislative power provided for by the Australian Constitution. For example, it highlights the relevance of Section 76 of the Constitution, which enabled the Commonwealth Parliament to establish the High Court and give it the jurisdiction to hear disputes arising under the Constitution or involving its interpretation. By giving the High Court this power, it enables the Court to determine whether the parliament has passed law outside its own power, and declare any such law ultra vires and invalid.

The High Court can also determine whether legislation infringes on the constitutional rights of the people and declare the existence of constitutionally implied rights. High Court judges, however, cannot intervene or make a ruling in a dispute over parliamentary authority unless a case is brought before them, which is reliant on the applicant having standing in the case and sufficient funds to finance a legal challenge. Given such cases are often complex, lengthy and require experienced legal representatives, the cost of pursuing a court challenge is very expensive and generally beyond the means of an ordinary person.

The outcome of constitutional challenges may also be uncertain and depend on the composition of the High Court justices. Some justices are more conservative in their approach to interpreting the Constitution, while others may be more activist and willing to give a more broad interpretation to protect the rights of the people. Similarly, judges can only rule on the facts of the case that is brought before them and on the constitutional validity of the law – they cannot rule on whether they believe parliament should have made the laws in question. While creating a precedent that may be followed in future cases, any High Court ruling will also not change the actual wording of the Constitution (which can only be achieved via a successful referendum as outlined in Section 128 of the Constitution).

Any court challenge to the passing of the bill would also highlight the independence of the judiciary from the legislative and executive branches of governments as provided by the Australian Constitution through its establishment of the separation of powers. In accordance with this parliament principle, the judicial power to enforce the law and settle disputes is given to the courts and tribunals and, under Chapter III of the Constitution, is vested in the High Court and other federal courts. The principle also ensures that members of the legislative and executive cannot be a part of the judiciary and determine the validity of the laws they created and administered. Furthermore while being the supreme law-making body with the power to override court made law, the Commonwealth Parliament cannot override High Court decisions involving the interpretation of the Constitution.


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