Year 12 Legal Studies

1. Year 12 Legal Studies Unit 3 Revision

2. Area of Study 1

3. Principles of the Australian Parliamentary System

4. Representative Government • The elected government must represent the views of the people within its electorate and act on their behalf. • This is achieved through regular elections, which allow the people to vote politicians into office to represent them in parliament. • If the elected members are not representing the views of the people who voted for them, they will be removed from office at the next election.

5. Responsible Government • Government is answerable and accountable to parliament(and therefore the people) for its actions. • It must act fairly and responsibly. - This is achieved through such devices as question time, debates and parliamentary committees. • Government is chosen by gaining the support of the Lower House, and if the government loses the confidence or support of parliament, then it must resign. • Ministers of parliament are also responsible to the parliament, and therefore the people, for their actions and decisions. • Ministers are also responsible and accountable for the actions of their government departments.

6. Separation of Powers • The doctrine of separation of powers states that there is three different types of power held by the Commonwealth must be exercised by different bodies and kept separate so that no one body has absolute power, and no one branch can control or interfere with the operation of another branch. Legislative Executive Judicial

7. Separation of Power • Legislative Power - The power to make laws. This is exercised by parliament as outlined in Section 1 of Constitution. • Executive Power – The power to implement and administer the laws. This is vested in the monarch by section 61 of the constitution and is exercisable by the Governor-General • Judicial Power – The power to enforce the law and settle legal disputes. Exercised by the courts.

8. Purpose of Separation of Powers • It provides for a system of checks and balances on the power of the government • Protects individual freedoms by ensuring the judiciary is kept independent from the law-makers • Ensures that no one body has absolute power.

9. The Structure of Parliament • Both the Commonwealth and Victorian parliament operate on a bicameral system. This is the system of having two houses. • Parliament consists of: • Lower house • Upper house • Queens Representative (Crown)

10. The Structure of the Commonwealth Parliament • The Commonwealth parliament consists of: • Lower House – House of Representatives 150 seats. 3 year term.Each member represents an electorate. • Upper house – Senate76 seats. 6 year term.12 senators are elected for each state. 2 each territory. • Queens Representative (Crown)Governor -General

11. The structure of the Victorian Parliament • The Victorian Parliament consists of: • Lower house – Legislative Assembly88 seats. 4 year term. 1 member represent each electoral district. • Upper house – Legislative Council40 seats. 4 year term. 5 members represent 1 region making up 8 regions. • Queens Representative - Governor

12. The structure of parliament • The Government is to determine by the preferential voting system in each electorate. The candidate with the most number of votes wins that seat. The government is formed by the political party who has the majority of seats in the lower house. • The Cabinet consists of the Prime Minister and senior ministers at the Commonwealth level and the Premier and senior ministers at the state level. Their main role is to develop government policies and to discuss new laws which should be considered by parliament.

13. The Role of the House of Parliament • The House of Representatives (lower house) • Make Laws – Most proposed laws or bills (and all money bills) are initiated in the Lower House. Any member can introduce a bill, but most are introduced by a member of the government. • Determines the government – the political party which has the majority of seats in the lower house forms the government. It is known as the people’s house. • Represents the people – reflects the current opinions and views of the people. This is achieved through having sufficient members to represent al Australians, that all votes of Australian voters are of equal worth, and that elections are held regularly so that members continue to represent the view of the voters.

14. The Role of the House of Parliament • The House of Representatives (lower house) • Publicises and scrutinises government administration – Through debating, policy statements, discussion of matters of public importance, committee investigations and asking questions of ministers in parliament, the lower house checks the government’s administration. • Controls government expenditure – Government cannot collect taxes or spend money unless allowed to do so through the passage of taxation or appropriation bills.

15. The Role of the House of Parliament • Senate (upper house) • State’s House – The Senate provides for equal representation from each state. There are 12 representatives from each state and 2 from each territory (totalling 76). At the time of federation the states were concerned at losing their power to dominant/larger states. The equal representation overcomes this problem and ensures the interests of the states are protected.

16. The Role of the House of Parliament • Senate (upper house) • House of Review – This house reviews bills which have been passed by the lower house. The bill is discussed/debated section by section. Any amendments must go back to the lower house for their approval and then forwarded to the upper house again. • Initiation of Bills – The senate can initiate proposed laws, with the exception of money bills, which can only originate in the Lower House; however, the Senate can suggest amendments to these bills. Bills may be initiated in the Senate when the member in charge of the bill is a senator, or when the House or Representative is not sitting.

17. The Role of the House of Parliament • Effectiveness of the Senate • A hostile house is effective. A hostile house is where the opposition has the majority in the upper house, therefore each bill is thoroughly debated and there can be a strong voice against the bill. • Rubberstamping is ineffective. Rubberstamping is where the same political party has the majority in the upper and lower houses. As members vote according to ‘party lines’ bills are given approval with very little debate, merely rubberstamped with approval.

18. Role of the Victorian Parliament Legislative Assembly (lower house) Legislative Council (upper house) House of Review Initiation of bills (except money bills) • Initiates most bills • Determines the seat of government • Represents the people • Publicises and scrutinises government and administration • Controls government expenditure

19. Role of the Crown • Queen’s Representative

20. Governor- General • Governor

21. Role of the Crown • Gives Royal Assent – This is the signing of a bill by the Crown’s representative, after the bill has passed through both the Upper and Lower Houses of parliament, signifying the Crown’s approval of the bill. While royal assent is usually given as a matter of course, the Governor-General can withhold or reserve royal assent, return the bill to the originating house or suggest amendments to the bill. • Dissolves the parliament and issues writs for new elections • Officially commissions the Prime Minister/Premier and appoints other ministers after elections; can dismiss ministers and the Prime Minister/Premier to ensure that the country continues to be governed. • Officially opens and closes parliamentary sessions. • Acts on the advice of ministers through the Executive Council to issue regulations and proclamations; appoint federal judges; appoint ambassadors and high commissioners to overseas countries and other senior government officials; issue royal commissions of enquiry; exercise the prerogative of mercy. • The crown can overrule or disallow any Commonwealth law within one year of its being given Royal Assent (s.59 Constitution)

22. Changing the Law

23. Reasons why laws may need to change 1. Community Values and attitudes in the community. • The social, moral, economic and political values of society should be reflected in the law. Hence, when there is a change in these values, laws should also be changed so that they continue to be relevant and accepted by society. Over time we have seen values and attitudes change in areas such as status of women, acceptance of alternative domestic relationships and the environment. • The growing acceptance of the de facto and same-sex relationships in society led to the passage of the Relationships Act 2008 (vic.), which established a register for the registration of domestic partnerships for people in a committed relationship, regardless of their gender. These couples are issued with a certificate that recognises their union. • Rights of same-sex couples with children were also extended by the Assisted Reproductive Treatment Act 2008 (vic.) which gives legal recognition to non-birth parents for their partner’s children, so lesbian couples are able to have both of their names listed as parents on their children’s birth certificate.

24. Reasons why laws may need to change 2. Technological advances Changes in technology necessitate constant changes in the law as new areas of law or offences develop. As this happens there is often a need to regulate the actions of some individuals and groups in order to protect the rights of others. The growth in new technologies and Internet use in Australia has resulted in Internet crime being one of the fastest growing crimes in the world. The Crimes Amendment (Identity Crime) Act 2009 (Vic.) was passed to comprehensively criminalise identity crime. Further, it allows for victims of identify crime to obtain a court certificate to assist them in remedying the effects of the crime.

25. Reasons why laws may need to change 3. Changes in Society The way in which our society functions is continually changing, and laws need to keep pace with this. New methods of production and new products are continually being developed; these have resulted in changes to consumer protection and trade practices laws. Changes in the characteristics and composition of society, such as race, religion and age distribution, has necessitated legal changes. The growth in environmental concern and the desire to reduce greenhouse gas emissions has resulted in the passage of the Electricity Industry Amendment (Premium Solar Feed-in-Tariff) Act 2009 (vic.) which provides financial rewards for households that generate excess solar power and transfer it back into the power grid.

26. Reasons why laws may need to change 4. Protection of the community One of the roles of a legal system is to protect the community from har. Hence, if a new law becomes evident or an existing harm intensifies, the law will need to be changed to try to overcome this threat. Concerns regarding the protection of the community, and children in particular from serious sex offenders have resulted in a number of acts being passed to help alleviate the threat when these offenders re-enter the community. The Serious Sex Offenders (detention and supervision) Act 2009 (Vic.) states that its purpose is ‘to enhance the protection of the community by requiring offenders who have served custodial sentences for certain sex offences and who present an unacceptable risk of harm to the community to be subject to ongoing detention and supervision.’

27. Formal pressure for change: VLRC Victorian Law Reform Commission: • When deciding on areas of law for review/change, a parliament may refer the matter to a formal law reform body for investigation. • Specialist body, that, at the request of parliament: • Examine a particular area of law or issue • Conduct investigations and inquire into that issue • Make recommendations for change to parliament The VLRC only ADVISES parliament and cannot change the law itself.

28. Role of the VLRC • Established in 2000 • Independent, government-funded organisation. • Research issues that the Victorian Attorney-General refers to it. • Commissions role: • Make law-reform recommendations on matters referred to it by the Attorney-General • Make Recommendations on minor legal issues of general community concern • Suggest to the Attorney General that he or she refer a law-reform matter to the Commission • Educate the community on areas of law relevant to the Commission’s work • Monitor and coordinate law-reform activity in Victoria The VLRC works closely with the community in its research. It consults experts in the issue under investigation, and invites the general public and interest groups to be involved through submissions, public hearings, discussions forums and comments on issues/discussion papers.

29. Law Reform process of the VLRC Reference is received from the Attorney-General or begins with community law-reform project Submissions are invited from any interested individuals or groups. R – Roger R- Rabbit C-Consistently S – Smells C R A P The Attorney-General tables the report in Victorian Parliament Consultations are undertaken with members of the community, people working in the area and other relevant agencies The commission’s staff undertake initial research and consultation Parliament decides whether to implement the recommendations (in whole or in part) through legislation A consultation/issues/discussion paper is published, which explains the key issues and provides a basis for consultation A report is published with recommendations for changes to the law and presented to the Attorney-General

30. VLRC: Registration of sex offenders reviewed The Reference: • April 2011 Attorney General asked VLRC to review laws about the registration of sex offenders. • Reference to look at how information about the registration of sex offenders was used by police and child protection services. • Did these laws allow law enforcement and child protection agencies to assess the risk of re-offending, prevent further offences and protect children from harm? • There were concerns raised about the scheme when it was reported that more than 300 registered sex offenders were found to be living with children or had unsupervised contact with them.

31. VLRC: Registration of sex offenders reviewed What is the Sex Offender Registration Scheme? • Sex offenders Registration Act 2004 (Vic) • All adults sentenced for committing sexual offences involving a child are automatically included in a register of sex offenders. Sex offenders under the age of 18 years, and adults sentenced for sexual offences against adult victims, may be registered if the sentencing court is satisfied that they pose a risk. • The VLRC report estimated that approximately 50 people are added to the register every month • The registration, maintained by Victoria Police, is not part of the offenders sentence. • The purpose of the register is to protect children • Registered sex offenders living in the community must keep the police informed about their personal details and whereabouts for a fixed period of time. • Adult offenders report for 8 years, 15 years or life (depending on the offences) • Young offenders report for 4 year or 7.5 years. • More than 4000 people have been placed on the register. This number was expected to reach 10,000 by 2020

32. VLRC: Registration of sex offenders reviewed Law Reform Process • A committee of experts was formed to provide advice to the VLRC. • The VLRC published an information paper on 22 June 2011. The paper described the operation of the registration scheme and posed a number of questions. • The commission received 32 written submissions • Submissions were received from organisations such as the Law Council of Australia, Victoria Legal Aid and the Children’s Court • The VLRC met with government agencies and community groups. Consulted with individuals who had specialist knowledge of sex offending or had been affected by the sex offender registration scheme. This included consulting with leading academics, forensic psychologists and psychiatrists, lawyers, judges, researchers, public officials, registered offenders and victim advocacy groups. • 28 July 2011 the Commission hosted an open day. During the open day members of the public could make individual appointments with VLRC staff to discuss the operation of the sex offender registration scheme.

33. VLRC: Registration of sex offenders reviewed The Report: • Report delivered to Attorney General on 22 December 2011 • 79 recommendations were made to make the sex offender registration scheme more effective • One main recommendation was to replace automatic placement on the Register with individual assessment by the court when an offender is sentenced. • The VLRC concluded that when individual offenders are automatically placed on the register, it is difficult to distinguish between potentially dangerous re-offenders and those offenders who pose little risk of sexually abusing children. • The report recommended that an individual assessment by the courts would allow the police and child protection authorities to focus on those sex offenders who were more likely to re-offend against children.

34. VLRC: Registration of sex offenders reviewed The Report: Other Recommendations: • Improve information share between Victoria Police, Department of Human Services and Corrections Victoria • Allows the courts to impose special conditions on registered offenders • Impose shorter registration period initially, but allowing for applications for an offender’s registration to be extended • Enable authorised police and child protection workers to disclose to a child’s parent or carer that a person having contact with a child is a registered sex offender • Introduce child protection prohibition orders. These orders would stop a registered offender from engaging in certain types of behaviour or employment, going to certain places or contacting certain people

35. Informal pressures of Changing the Law • 1. Petitions • A formal, written request to the Parliament for action in relation to a particular issue/law that is considered outdated or unjust • Usually forwarded on to local MP to present in parliament • Only needs one signature to be accepted • The more signatures, its proves the level of community support and the more likely MPs will take the issue into consideration

36. Informal pressures of Changing the Law Petition Rules: Must: Be addressed to only one house of parliament • Refer to a matter that is within the power of parliament to address • State the facts • Contain a request to take action Can be presented to any MP (doesn’t have to be the local member for the group)

37. Informal pressures of Changing the Law: Demonstrations • Demonstrations are gatherings of members of the community, held in a public place that are designed to show their support for a change in the law. • Mass Rallies • Boycotts

38. Informal pressures of Changing the Law: Media • Individuals and groups can use the media to communicate their views to others. Without media coverage: • Law-makers can’t gauge public opinion • (more cynically perhaps) law- makers won’t stand up and take notice • Individuals and groups can’t inform law-makers of change in values and attitudes • Other people can’t find out and join the cause Getting an issue in the media means getting an issue on the (public/political) agenda. This is so important that organisations actually pay people/firms to do this for them! (PR)

39. Informal pressures of Changing the Law: Media Newspapers: • Individuals/groups can write letters to the editor about their concern with a law. • Often one sided, don’t read about both sides of the debate. • Can alert law-makers of the need to amend the law

40. Informal pressures of Changing the Law: Media Radio • Talkback – individuals/group can do interviews about changing the law • Often very opinionated • Can be more influential than a newspaper as it has the potential to reach more people.

41. Informal pressures of Changing the Law: Media Television: Programs can investigate issues in depth and inform the community of injustices and the need for change in the law. Can be more influential in public opinion than newspapers (due to a larger audience). Also, images can have a huge effect on public opinion due to the emotive element of visuals (Four Corners report on live animal exports in 2011 led to the massive GetUp! Campaign and subsequent changing of the law)

42. Informal pressures of Changing the Law: Media • Technology has revolutionised communications in the 21st Century. • New platforms means groups can communicate on a broader scale. • Social networking media such as Facebook and Twitter have been used by political activists to conduct campaigns for change. • Eg Occupy Melbourne

43. Evaluating of effectiveness of methods used by individuals and groups

44. The Legislative Process • Drafting Process: • Cabinet: • While any member of parliament may draft and initiate a bill that proposes a change to the law, most legal changes are suggested by Cabinet. Cabinet is the government policy-making body that it is made up of senior ministers and the Prime Minister (federal level) or the Premier (state level). Cabinet is not mentioned in the Constitution, but is a convention Australia retained from British law. • Parliamentary Committees: • Parliamentary Committees can be composed of members of one house or a joint committee of both houses of parliament. Parliamentary committees conduct inquiries into specified matters and report their findings back to parliament for it to consider. • Parliamentary Counsel: • Once the desired content of the bill has been determined, cabinet or the relevant minister will brief parliamentary counsel, which will act on the advice of the minister and draft the legislation. The Office of Parliamentary Counsel consists of lawyers who work for parliament and are able to use their skills in using legal language and specialised legal knowledge when drafting legislation. While the parliamentary counsel possesses expertise and knowledge in the drafting of bills, it does face challenges in writing a bill that is able to incorporate future situations, is not in conflict with another bill and reflects exactly what the government desired.

45. Types of Bills

46. Bill Notice of intention 2. First reading (clerk) Copies distributed to MPs 3. Second Reading ‘Second Reading Speech’ by MP responsible for the introduction Debate and vote 4. Consideration in detail/committee stage **optional** Examined in detail 5. Third reading –debate on content Voting on bill 6. Second House Bill undergoes same process 7. Certification Clerk certifies -after passed through both houses 8. Royal Assent Crown’s representative Signs off on Bill 9. Proclamation In Australian Gazette Bill passes first house Act

47. Legislative Process: • 1. Introduction/Notice of Intention: • The MP responsible for the Bill gives notice of their intention to present the Bill when Parliament next sits. • 2. The First Reading: • The ‘Long title’ is read out. There is no discussion or debate. Copies are circulated to all members of the house. The contents of the Bill are made known. At this time the Bill may move immediately to the second reading or a future date for a second reading is set.

48. Legislative Process • 3. Second Reading • The minister will deliver a speech outlining the purpose, function and broad objectives of the Bill, called the second reading speech. • In Victoria, this speech must begin with a statement of compatibility, stating whether the Bill is compatible with the Victorian Charter of Human Rights and Responsibilities. • Members study the Bill and its effects. A Bill is then often referred to a committee for scrutinising. • The Second reading debate then occurs, commencing with the opposition’s response to the Bill. This is usually the most substantial debate on the general principles of the Bill takes place. • A Vote is taken to determine whether to continue with the Bill.

49. Legislative Process • 4. Consideration in Detail/Committee Stage • An informal discussion of the Bill takes place where it is examined in detail, clause-by-clause, and amendments are made and voted upon. This stage can be bypassed if the members agree that the Bill does not need to be examined in detail. • 5. The Third Reading • The long title is read again • There may be some debate on the content of the Bill. • Voting on the Bill - If it passed the first house, the clerk again reads the long-title of the Bill to signify that the Bill has finally passed the House. • Bill passes the first house and proceeds to the second house

50. Legislative Process • 6. Goes to Second House The Bill goes through the same procedures as the original house: • Introduction/Notice of Intention and First Reading • Second Reading • Committee of the Whole/Committee stage • Third Reading • Vote on Bill Any amendments made in the second house must be communicated to the first house, and the Bill in its new form needs to be passed in the first house. The Bill must be passed in the same form in both houses.