| Lawmaking process in parliament and the courts with reference to the influence of:
Private member’s bills:
Commonwealth electoral Bill (1924)
Euthanasia Laws Bill (1996)
Evidence Amendment (Journalists’ Privilege) Act 2011
Roach v. Electoral Commissioner (2007)
Lane v Morrison (2009): Military tribunals
Native Title Act (1992) supporting the Mabo judgement and the native Title Amendment Act (1997) overturning the Wik judgement
Carbon Pollution Reduction Scheme (Rudd ALP bill) and Carbon Tax (Gillard ALP proposal)
Communist Party of Australia v Commonwealth of Australia (1951)
Work Choices (Coalition bill) and Fair Work Australia (ALP bill) – role of unions and business associations
Rowe & Anor v Electoral Commissioner (2010)
GetUp! challenge to the closing of the electoral rolls
The Individual and parliamentary Law-making: Private Members’ Bills
Only a small number of private member's bills or private senator's bills introduced into the Australian Parliament since 1901 have been passed into law. A larger number have passed one house but not the other. An even larger number did not pass the house in which they were introduced and thus lapsed.
Among the most notable of the successful bills was the Commonwealth Electoral Bill 1924, which introduced compulsory voting for federal elections. This was introduced by Senator for Tasmania Herbert Payne of the Nationalist Party on 16 July 1924, passed by the Senate on 23 July, passed by the House of Representatives on 24 July - both times with little debate - and given Royal Assent on 31 July. Despite much public debate ever since on the issue of compulsory voting, the legislation has never been repealed.
Another very notable private member's bill was the Euthanasia Laws Bill 1996, which deprived the Northern Territory, Australian Capital Territory and Norfolk Island legislatures of the power to make laws permitting euthanasia. This was introduced by Kevin Andrews, Member for Menzies, after the Northern Territory Legislative Assembly had passed such a law, the Rights of the Terminally Ill Act 1995. Although Andrews was a member of the Liberal Party, members and senators were allowed a conscience vote on the issue, and each side of the debate was supported by members and senators from all political parties.
Since the Gillard Government is dependent on independent and minor party support, a flood of private member bills have been introduced.
An example of a successful recent bill was the Andrew Wilkie (Independent member for Denison) bill designed to protect the confidentiality of a journalist’s sources: Evidence Amendment (Journalists’ Privilege) Act 201.
Assess the extent to which individuals can influence parliamentary law making. (5 marks)
The Individual and the Courts: Significant cases
Case 1: Mabo (1992) - see notes from High Court common law decisions
Case 2: Lane v Morrison (2009):
The Australian Military Court (AMC) was a military service tribunal established in 2007 with the primary aim of maintaining military justice within the Australian Defence Force.
The Australian Military Court consisted of a Chief Military Judge, two permanent Military Judges, and a part-time panel of reserve Military Judges. The first Chief Military Judge was Brigadier Ian Westwood AM, who was sworn in with the two Permanent Military Judges (Colonel Peter Morrison and Lieutenant Colonel Jennifer Woodward) on 1 October 2007.
Depending on the nature and severity of the offence, the Defence Force Discipline Act made provision for cases to be tried before a single judge, or in more serious cases (such as those committed in the face of the enemy, mutiny, desertion or commanding a Service offence), a jury. Although based in Canberra, the AMC was able to conduct trials anywhere in Australian territories and overseas in operational areas where Australian forces were serving.
The constitutional validity of the Australian Military Court was successfully challenged in the High Court of Australia by a former Royal Australian Navy Leading Seaman, in the case Lane v Morrison commencing on 16 January 2009.
In August 2005, the sailor and three other military personnel were on a recruitment drive in the Queensland town of Roma. After a game of golf and consumption of a quantity of beer, he was alleged to have committed an indecent act on an army sergeant. Two years later, the Navy charged him with indecent assault on a superior officer, and he was scheduled to be tried before the Australian Military Court on 25 March 2008.
On 26 August 2009, the High Court ruled that the Australian Military Court was not a Chapter III Court for the purposes of the Constitution of Australia, and that the legislation creating it was invalid as it was a court of record which "[was] to exercise the judicial power of the commonwealth" by making binding and authoritative judgements independent of the Australian Defence Force chain of command.
Can individuals have a significant influence on Court made law in Australia? (5 marks)
Case 3: Roach v. Electoral Commissioner (2007)
Vicki Lee Roach was a Victorian woman of Aboriginal descent, who was serving a six year term of imprisonment, having been convicted on five counts of offences that included burglary, conduct endangering persons and negligently causing serious injury. She challenged the validity of the 2006 amendments made to the Electoral Act 1918 (Cth), by the passage of the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth).
The amendments prohibited all prisoners who were serving a sentence of imprisonment for a Commonwealth, state or territory offence from voting in federal elections. Before the amendment only those prisoners serving a sentence of three years or longer were excluded from voting. Thus, Ms Roach was excluded from voting.
Ms Roach’s challenge to the validity of the 2006 amendment was heard by the High Court in September 2007.
The High Court held that the complete ban on prisoners voting was unconstitutional, as it was inconsistent with the principles of representative government. This principle requires that members of parliament are elected into office by the people they seek to represent. Sections 7 and 24 of the Constitution require that Senators and members of the House of Representatives are directly chosen by the people; therefore there is a right to vote, that had been violated by this legislation. The 2006 amendment was declared to be invalid.
The outcome of the case had far reaching implications for the legal system in terms of recognising that there is a constitutionally protected right to vote in Australia.
However, as Vicki Lee Roach was serving a prison term of longer than three years, and the original provisions of the Electoral Act were upheld, Ms Roach was still ineligible to vote in elections.
Explain why it was up to the High Court to decide whether there had been an abuse of rights by changing the provisions of the Electoral Act.
Political parties and Law Making by Parliament
Case Study 1: CPRS and the carbon tax – see research sheet
Case Study 2: Native Title Act and Native Title Amendment Act
Following the Mabo decision, the ALP federal government sought to legislate to clarify the implications of the High Court judgement. The government developed a 115 page bill which was introduced into the House of Representatives on 16 November 1993 and passed there without amendment on 25 November 1993. It was introduced into the Senate on 25 November 1993. The Native Title Bill 1993 attempted to reconcile differing interests. While proposing a regime for the recognition and protection of native title, it also laid out a framework for the validation of European titles and leases and thus the extinguishment of much native title.
The bill was the subject of an intense political struggle and protracted debate in the Senate as the parties represented there were polarised by alignment with divergent public opinion. The government was reliant on the votes of members of minor parties and an independent in the Senate for the passage of the legislation, and ultimately supported a number of amendments by the Western Australian Greens reflecting the interests of Aboriginal groups.
The bill was extensively amended, with the Senate agreeing to 88 amendments proposed by the government, 6 Australian Democrat amendments, and 25 amendments proposed by the Greens. Debate on the bill occupied a total of 51 hours and 49 minutes in the Senate, the longest debate on one bill in the Australian Parliament to that time since federation.
The Native Title Bill 1993 passed in the Senate on 22 December 1993. It was returned to the House of Representatives with a message requesting agreement to 116 Senate amendments, listed on a separately printed schedule. The House of Representatives agreed to the amendments on the same day. The Native Title Bill 1993 was assented to by the Governor-General on 24 December 1993, and became part of Australian statute law, as the Native Title Act 1993
However, the Mabo decision, and the subsequent Native Title Act, left unresolved the issue of native title on pastoral leases. In December 1996, the High Court made another important decision in the Wik case. The Wik decision followed action by the Wik people of Cape York in Queensland who claimed native title could coexist with current pastoral leases.
The court held that native title rights could exist side-by-side with the rights of pastoralists on cattle and sheep stations. The Wik decision concerned pastoralists and conservative leaders, who demanded that native title be extinguished on pastoral leases. The Howard Government decided to alter native title rights with its Native Title Amendment Bill (1998), based on the so-called Ten Point Plan for native title.
The legislation was opposed by the Australian Labor Party and the Australian Democrats. The final legislation was heavily amended to gain the support of Independent Senator Brian Harradine, whose vote was required for the bill to pass.
Discuss the contribution of political parties to the legislative process in Australia. (5 marks)
Political parties and Law Making by the Courts
Case Study 1: Communist Party of Australia v Commonwealth of Australia (1951)
During the 1949 federal election campaign, the new Prime Minister, Robert Menzies, made the election pledge that he would ban the CPA.
The Australian Communist Party Dissolution Bill 1950 (Cth) said the CPA was to be declared an unlawful organisation and that the party's property could be seized and disposed of. Any other organisations that were suspected of being affiliated with the CPA were also to be dissolved. Anyone who carried on the work of the party after it was declared illegal was to be jailed for five years. In addition, as soon as someone was declared to be a communist, they were to be suspended from their job if it were in the federal government, the defence forces, or in the unions.
The Bill was presented to Parliament on 27 April 1950. The Labor leader, Ben Chifley, accused the government of moving towards a totalitarian state. Banning the CPA was a popular policy with the electorate, so Labor said that though they would not oppose the whole bill, they would try to amend the clauses that they thought impeded freedom and justice.
The bill failed on the first attempt to pass it, because the Labor majority in the Senate made too many amendments and the government would not pass it in that form. But when the war in Korea started, it stirred up the situation to the advantage of the government; Menzies could once again stress the dangers of communist expansion and was able to re-introduce the Communist Party Dissolution Bill into the House of Representatives (28 September 1950). By the middle of October the ALP's Federal Executive had finally agreed to let the bill pass in the Senate and it became law on 20 October 1950.
The CPA and the unions immediately went to the High Court. It took four months for the court to make its decision that the Communist Party Dissolution Act 1950 (the Act) was unconstitutional. Six of the seven judges ruled against the Act.
The decision of the High Court had nothing to do with freedom of speech or other democratic principles. The Commonwealth (federal) government is only able to make laws in accordance with the Commonwealth Constitution. The major heads of Commonwealth legislative power are listed in section 51 of the Constitution. Subsection vi of section 51(the defence power) gives the Commonwealth government the power to make laws relating to 'The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth'.
In order to show that this was a defence issue, the Act was written in a way that described the CPA as a great danger to the defence of Australia. The High Court held that the defence of Australia was not under so great a threat as to justify the use of the defence power to ban the CPA.
In April 1951, after the High Court decision, Menzies forced both houses into an election so he could gain control of the Senate and continue to push his anti-communist legislation. During the election, Menzies again laid great stress on the spread of communism and its dangers, pushing the threat of an imminent war to scare people away from voting Labor. He also talked of constitutional reform in order to get the Communist Party Dissolution Act to become law. His strategy worked and the Liberal party now controlled the House and the Senate.
In order to overcome the constitutional hurdle put up by the High Court, Menzies needed to hold a referendum to change the constitution. The 1951 Australian Referendum was held on 22 September 1951. It contained only one question:
'Do you approve of the proposed law for the alteration of the Constitution entitled “Constitution Alteration (Powers to deal with Communists and Communism) 1951"?'
The proposed legislation mentioned in the referendum was an incredibly complicated addition to section 51 of the Commonwealth Constitution. Menzies wanted to add a subsection to section 51 which would effectively grant the government more power and enable the Liberals to declare the CPA illegal through the Communist Party Dissolution Act 1950. The government, however, had not done enough to assure the public that their civil rights would not be undermined by this new piece of legislation and the referendum was defeated. The CPA, therefore, could not be banned by the federal government.
With reference to one common law and one constitutional decision, discuss the interaction of the Courts and political parties in the law making process. (25 marks)
Suggestion: use Mabo and Communist Party Abolition cases and related legislation
Pressure Groups and law making by Parliament
The Workplace Relations Act 1996, popularly known as Work Choices, was a Legislative Act of the Australian Parliament that came into effect in March 2006 which involved many controversial amendments to the Workplace Relations Act 1996, the main federal statute which regulated industrial relations in Australia.
Work Choices was passed by the Howard Government in 2005 and was claimed to improve employment levels and national economic performance by removing unfair dismissal laws for companies under a certain size, it also compromised a workforce's ability to legally go on strike, requiring workers to bargain for previously-guaranteed conditions without collectivized representation, and significantly restricting trade union activity and recruitment on the work site.
The passing and implementation of the new laws was strongly opposed by the left side of politics, particularly the trade union movement. Critics argued that the laws stripped away basic employee rights and were fundamentally unfair.
The Australian Council of Trade Unions, the peak association for Australian trade unions, launched its "Your Rights at Work" campaign opposing the changes. The campaign has involved mass rallies and marches, television and radio advertisements, judicial action, and e-activism.
On 15 November 2005, the ACTU organised a national day of protest, during which the ACTU estimated 546,000 people took part in marches and protests in Australia's state capitals and other cities. The rallies were addressed by Labor State Premiers. Other notable Australians, including former Labor Prime Minister Bob Hawke, also spoke in opposition to the industrial relations changes.
A second national day of protest was held across Australia on November 30, 2006 with rallies or meetings in about 300 sites nationwide. At the MCG the entertainment included Jimmy Barnes and the crowd was addressed by such speakers as the leader of the opposition Kim Beazley. Estimates for the Melbourne crowd ranged from 45,000 to 65,000 people at the MCG and the march to Federation Square. In other cities, an estimated 40,000 people attended a similar rally in Sydney, 20,000 in Brisbane, 7,000 in Adelaide, 3,000 in Perth, 2,000 in Darwin, and 1,000 in Canberra.
At the commencement of the Work Choices reforms every state and territory of Australia had a Labor government. The States lodged a challenge to the Constitutional validity of Work Choices in the High Court of Australia. Various union groups also lodged their own challenge in the High Court. The High Court heard arguments between 4 May 2006 and 11 May 2006. On 14 November 2006 the High Court, by a 5 to 2 majority, rejected the challenge, upholding the Government's use of the corporations power as a constitutionally valid basis for the Work Choices reforms.[
Work Choices was a major issue in the 2007 federal election, as the Australian Labor Party (ALP) vowed to abolish it. Labor under Kevin Rudd subsequently won the election, with Work Choices being one of the biggest issues of the campaign, and repealed the entirety of the WorkChoices legislation shortly after assuming office.
Can pressure groups influence law making by parliament? Discuss with reference to a specific piece of legislation. (5 marks)
Pressure Groups and law making by the Courts
Rowe v Electoral Commissioner (2010) is a High Court of Australia case dealing with the validity of Commonwealth legislation that sought to restrict the time in which a voter may seek to enrol in an election (or alter their enrolment details) after the writs for such an election have been issued by the Governor General.
One of those provisions, s 102(4), prevents the Electoral Commissioner from considering claims for enrolment lodged after 8 pm on the date of the issue of writs for an election for the House of Representatives or the Senate until after the close of polling. Another provision, s 102( 4AA), prevents consideration of claims for transfer of enrolment from one divisional roll to another from 8 pm on the date of the close of the rolls for an election until after the close of polling. A third provision, s 155, provides that the rolls close on the third working day after the date of the writs.
On 6 August 2010, the Court by majority ruled that such restrictions were invalid.
The challenge to the Commonwealth legislation was brought by GetUp! - an activist group focusing on youth issues and promoting democratic participation.
Only a few weeks later, GetUp! Was involved in another court victory. As a part of its policy to foster greater representative democracy, GetUp! created a website that website allowed people to enroll to vote online using an electronic signature (say, using a touchpad). Early in 2010 the Electoral Commissioner told GetUp! that this website would not be acceptable because enrolments had to be signed by hand.
In the case of Getup Ltd v Electoral Commissioner  FCA 869, Perram J in the Federal Court set aside that decision and found that her application for registration was “in order”.
His Honour found that the Electronic Transactions Act 1999 (Cth) applied to the Commonwealth Electoral Act 1918 (Cth) and that therefore enrolling on the website was a perfectly acceptable manner of registration.
So in the span of two weeks GetUp! not only secured a protection for Australians to get more than one day to enrol after an election is announced, but also for Australians to do it online.
Can pressure groups use the court system to achieve changes to laws? Refer to a specific case in your answer. (5 marks)