PRE VCE

LEGAL
STUDIES
MR ADNAN KRPO

NAME:
Contents
1.1 Legal Foundations
1.2 Criminal and Civil Law
2.1 Principles of Justice
2.2 Methods for Civil Resolutions
2.3 Types of remedies.
3.1 The role of the High Court
3.2 The Victorian Court Hierarchy
3.3 Reasons for the Victorian Court
Hierarchy
4.1 The Mabo Case
4.2 Facts and results
4.3 Decision and impact
5.1 The Australian Constituion
5.2 Referendum
5.3 1967 Referendum Process
Contents
6.1 Key features of Australia’s System of
Government
6.2 The Separation of Powers
6.3 Australia’s Commonwealth Parliament
7.1 Law Making Powers
7.2 Types of Specific Powers
7.3 Section 109
8.1 Australia’s International Obligations
8.2 Australia’s International Role and
Responsibilities
8.3 Australia’s International Legal
Obligations
 TOPIC 1.1
LEGAL FOUNDATIONS
The legal system is a set of methods and institutions that make and enforce
laws. It includes parliaments, courts, tribunals and other bodies, such as the
police force, which aim to deal fairly and justly with individuals who have
broken the law or breached another person's rights.

Laws aim to achieve social cohesion. Social cohesion is when members of

society are willing to cooperate with each other in order to survive and
prosper.

To achieve social cohesion, laws:

establish a framework in which people live
set boundaries for behaviour (by stating what is acceptable and what is
not)
allow individuals to make choices about how they live.

For example, there are laws in Australia that make murder a crime. If these
laws did not exist, then some members of society might believe that killing
another person is acceptable behaviour.

LAWS AND THE INDIVIDUAL

Laws also protect the rights of individuals, and provide mechanisms or ways
for disputes to be resolved in a peaceful manner. This is because, even
though there are laws in place, it is inevitable that those laws will be broken
and disagreements will arise between individuals.
 TOPIC 1.1
LEGAL FOUNDATIONS
THE RULE OF LAW

One of the most important foundations of the Australian legal system is the
rule of law.

Rule of law: The principle that everyone in society is bound by law and must
obey the law, and that laws should be fair and clear so people are willing and
able to obey them.

The rule of law means that everyone in a society, including government and
individuals, is bound by and must obey any laws that exist. This means that
everyone, even the people who make the law, must follow the law. It also
means that laws should be laws that people are willing and able to follow. If
people do not agree with laws, then they should be able to freely
demonstrate or protest to try to influence a change in the law.
Once laws are in place, it is the responsibility of individuals to ensure that
they are aware of the laws, and that they obey them. Individuals are also
expected to respect human rights and act in a way that is consistent with
those rights. Failing to do so may lead to disharmony, and, ultimately, a
fractured society.
 TOPIC 1.1
LEGAL FOUNDATIONS
CHARACTERISTICS OF AN EFFECTIVE LAW

For society to function properly and for there to be social cohesion, laws
must be effective. To be effective, a law must have the following five
characteristics:

1. It must be clear and understood.

2. It must be stable.
3. It must reflect society's values.
4. It must be enforceable.
5. It must be know by people in society.
 TOPIC 1.1
LEGAL FOUNDATIONS
CHARACTERISTICS OF AN EFFECTIVE LAW

A LAW MUST BE CLEAR AND UNDERSTOOD:

It must be written so that people can understand what it means and what
the intent of the law is. If a law is not clear, people may not follow it, which
would make it ineffective.

EG. If there was a law that stated that you could no ride on the side walk,
does this reference to a bike or a vehicle.

Laws must therefore be clear and understood in order to be able to be

effective.

A LAW MUST BE STABLE:

A law must be stable and predictable for it to be effective. If the laws

constantly changed, it would be difficult to be certain if you were doing the
right thing or the wrong thing.

EG. Theft has always been a crime in Australia. This means that people
know that stealing is against the law.

A LAW MUST REFLECT SOCIETY'S VALUES:

Laws should reflect the views and values of society. When laws are in line
with what society values, people are more likely to want, and be able, to
follow the law.

EG. The Narcotics Drug Act was amended in 2016 to legalise the use of
cannabis for medicinal purposes.
 TOPIC 1.1
LEGAL FOUNDATIONS
CHARACTERISTICS OF AN EFFECTIVE LAW

A LAW MUST BE ENFORCEABLE:

For a law to be effective, it must be possible to catch and punish people if
they break the law. If a law can't be enforced and people can't be punished,
then people are less likely to follow it.

In Victoria, it is an offence to behave in a disorderly manner when drunk in

public. This law can be enforced because police and witnesses can see
your behaviour. A law that made it illegal to dream of going on holiday
would not be enforceable, as police would not be able to monitor your
dreams.

A LAW MUST BE KNOWN BY PEOPLE IN SOCIETY:

If a law is not known, people cannot follow it. It is important that people
know about laws so that they can be effective. While it is the responsibility
of an individual to be aware of the law, it is also the responsibility of law
makers to inform the public of any new laws.

In 2015, a new law stated that any child attending childcare facilities in
Victoria must be immunised. This law, known as 'no jab no play', was aimed
at increasing the number of young children being vaccinated after concern
was raised about Victoria's immunisation rates. There was a big media
campaign to tell people about the laws so that they were fully informed
about having to vaccinate their children to be able to use childcare
facilities.
TOPIC 1.1
LEGAL FOUNDATIONS

CASE STUDY 1
DOCTORS CALL ABORTION LAWS 'AMBIGUOUS' AND
'OUTDATED'

In some states of Australia, abortion is still a crime. Medical

practitioners in New South Wales and Queensland have called for
changes in the law in those states. Currently, medical professionals
who provide, or assist with, an abortion, can be prosecuted under
criminal law. The woman accessing the procedure can also be
prosecuted under criminal law, unless it can be proved that the
pregnancy poses danger to the woman's physical or mental health.

The Medical Journal of Australia published an article in October 2016

pressing for reform. The authors (Heather Douglas and Caroline de
Costa) said, 'Most Australian states have introduced significant
legislative modifications since 2000; however, in NSW and
Queensland, the legislation, and specifically the offences, are more
than 100 years old and well overdue for reform. They also argued
that there was fear and uncertainty among doctors about when an
abortion in Queensland might be legal or illegal. The authors argued
that abortion should be decriminalised everywhere and treated as a
health issue, not a criminal matter.
TOPIC 1.1 QUESTIONS
1. Explain the relationship between the individual and the law.

2. What does the rule of law mean for Australians?

3. List the characteristics of an effective law?

4. Provide an example of a law that is considered 'effective'. Please

explain why this law is still used in modern society.

5. Why do laws need to reflect society's values? What do you think

would happen if laws did not reflect these values?

6. Do you think a law proposing that it is an offence to be drunk in a

private home would be easy to enforce? Justify your answer?

7. Using at least two characterisitics of an efffective law, explain why

Queensland and New South Wales abortion laws may no longer be
effective?

8. How do you think that Queensland and New South Wales could
change their laws so that they were more effective? Use at least two
of the five characteristics of an effective law to justify your answer.
 TOPIC 1.2
CRIMINAL AND CIVIL LAW
CRIMINAL LAW:
Criminal law refers to the laws that aim to protect society from harm, and to
punish those who offend against our basic values, usually by harming or
threatening to harm another.

A crime: is an act or omission which constitutes an offence and is punishable

under the criminal law.

The purpose of criminal law is to:

To protect the rights of individuals, property and society
Maintain social order and security
Uphold the rule of law
Improve social cohesion.

The key features of criminal law are:

The parties involved are the prosecution (the police or the Director of
Public Prosecutions) and the accused person (sometimes referred to as
the ‘defendant’).
The law usually requires the prosecution to prove the accused person
is guilty.
A guilty offender will face sentencing, where a criminal sanction will be
imposed to punish them and protect society.
The severity of the crime will determine how harsh a sanction is
imposed. Some offenders may only be punished with a small fine, while
other offenders are sentenced to a period of imprisonment.
TOPIC 1.2
CRIMINAL AND CIVIL LAW
Some examples of criminal law offences include, but are not limited to:
Murder
Manslaughter
Theft
Assault.

CASE STUDY 2
DPP V RISTEVSKI (2019) VSC 253
Offender Borce Ristevski pleaded guilty' to manslaughter by
unlawful and dangerous act after killing his wife, Karen Ristevski,
in their family home and disposing of the remains in Macedon
Regional Park on 29 June 2016. Ristevski denied having any
involvement in his wife's death in the eight months that it took
for Victorian police to locate her remains, and continued to do
so up until the beginning of 2019, when he finally pleaded
guilty' to manslaughter. Ristevski was sentenced to nine years'
imprisonment, with a non-parole period of six years. This
decision was appealed by the Director of Public Prosecutions in
May 2019 on the basis that the sentence and non-parole
period are manifestly inadequate.
TOPIC 1.2
CRIMINAL AND CIVIL LAW

CASE STUDY 3
Hale V Bellvoir Football Club and Ors (2016)
Hale, the plaintiff, played junior football. During the first quarter of
the game, the plaintiff was running fast towards the forward pocket
and leapt in the air to mark the football. He caught the ball and as he
landed his left boot got caught in the wire fence outside the
boundary line. He crashed to the ground and badly injured his left
knee. The plaintiff sued the football club, the football league that
organised the competition he was playing in and the local council (all
three organisations comprised the defendants in this case). He
wanted to be paid compensation for the consequences of his knee
injury. He argued his injury was the defendants’ fault – that by having
the wire fence too close to the boundary line, they failed to exercise
enough care toward those playing in the match and this negligence
caused his knee injury. The judge decided that the plaintiff should be
paid $375,000 and that his past medical expenses, earnings and care
should also be paid back to him. The judge also ordered the
defendants pay the plaintiff $150,000 to compensate for a potential
loss of ability to earn income in the future because of the injury, and
$46,500 for future medical expenses.
 TOPIC 1.2
CRIMINAL AND CIVIL LAW
CIVIL LAW:
Civil law refers to the laws that aim to provide individuals and organisations
the right to seek a remedy if another party infringes their rights, and this
causes injury or loss.

A civil dispute is a dispute between two parties where one party feels that
their rights have been infringed by the actions of the other party and is
seeking compensation.

The key features of civil law are:

The parties involved are the injured party who brings the action (the
plaintiff ) and the party the action has been brought against (the
defendant), who is believed to have caused the plaintiff’s loss or
suffering.
The aim of civil law is to return the party who has suffered loss or injury
to their original position.
The plaintiff will usually be pursuing a claim of financial compensation.
The outcome in a civil case is not ‘guilty’/‘not guilty’ – instead the judge
or jury will decide whether the defendant is liable/not liable for the
plaintiff’s suffering.
If the defendant is liable and the rights of the plaintiff have been
infringed, the courts will usually award a remedy to the plaintiff as
compensation for their loss (this will often take the form of a sum of
money paid by the defendant to the plaintiff – known as ‘damages’).
 TOPIC 1.2
CRIMINAL AND CIVIL LAW

TORT LAW:
Torts is the area of law that sets out when individuals can be compensated
for harm. It is generally identified through the acts that cause another
individual harm.

There are four main types:

Negligence: This occurs when someone owes a duty of care to another
and breaches that duty of care. e.g. A teacher leaves a students behind
on an excursion.
Defamation: This is when material is published that could damage
another person's reputation. e.g. a newspaper publishes a story that
has false claims about a celebrity in it.
Trespass: This is when someone interferes with another person, their
land or their goods, and causes damage, e.g. destroying someone's
property.
Nuisance: This relates to the use and enjoyment of someone's property,
e.g. a factory making loud noises during the night may interfere with a
family being able to enjoy their home at night.
TOPIC 1.2
CRIMINAL AND CIVIL LAW
Differences between Criminal and Civil Law
 TOPIC 1.2
CRIMINAL AND CIVIL LAW
THE PRESUMPTION OF INNOCENCE:
The presumption of innocence refers to a guarantee made to all accused
persons that they are to be treated as innocent until it is proven, beyond a
reasonable doubt, that they are guilty of a criminal offence. This guarantee
is afforded to all accused persons, regardless of their personal situation or
the circumstances of the case in which they are implicated - a
demonstration of the principle of equality before the law

SUMMARY OFFENCES:
Summary offences are less serious or ‘minor’ criminal offences where the
impact on society is relatively small and the matter is resolved by a single
magistrate in the Magistrates’ Court.
Most summary offences are set out in the Summary Offences Act 1966
(Vic), including:
Disorderly conduct (s. 17A)
Common assault (s. 23)
Tattooing of juveniles (s. 42)

INDICTABLE OFFENCES:
Indictable offences are more serious criminal offences where the impact on
society is significant and the matter is resolved by a judge and jury in higher
courts.
Most offences in the Crimes Act 1958 (Vic) are indictable offences,
including:
Murder (s. 3)
Manslaughter (s. 5)
Kidnapping (s. 63A)
TOPIC 1.2
CRIMINAL AND CIVIL LAW

CASE STUDY 4
DPP v Hitchiner [2016] VCC 1844 (1 December 2016)
Stuart Hitchiner was employed by Red Hill Motors for approximately
31 years until November 2015. Between 2009 and 2015, he
processed 1985 false refund transactions, each of which was paid
into his personal bank account. A total of $619 338.40 was taken
from the business. Hitchiner was arrested on 16 November 2015
after his offending was detected by his employer and reported to
police. Hitchiner pleaded free guilty to seven charges of theft. On 1
December 2016, Judge Grant of the County Court of Victoria
convicted Hitchiner and sentenced him to a term of imprisonment of
three years and six months. Hitchiner will need to serve a minimum
sentence of 21 months before he is eligible for release on parole. The
County Court also ordered that Hitchiner pay compensation of $619
338.40 to Alan Wallace Pittock of Red Hill Motors. This is known as a
compensation order, which can be made in a criminal case when a
victim has suffered financial loss as a result of a crime
TOPIC 1.2 QUESTIONS
1. Explain two differences between criminal law and civil law.

2. Would the police be involved in a civil dispute? Give a reason for

your answer?

3. What is one purpose of criminal law?

4. Explain the presumption of innocence in your own words.

5. What is the main difference between a summary offence and an

indictable offence? Provide an example of each offence.

6. Refer to DPP V Hitchiner. How does the case show the

relationship between civil and criminal law? Include the type of case.

7. Consider Hitchiner's guilty plea for theft. Was this a summary or

an indictable offence? Provide a reason why?

8. What is the burden of proof and was there enough evidence to

accuse Hitchiner?
 TOPIC 2.1
PRINCIPLES OF JUSTICE

FAIRNESS

‘Fairness’ is defined in the VCAA Legal Studies Study Design as ensuring ‘fair
legal processes are in place, and all parties receive a fair hearing’

DETAILS:
Fairness is upheld in civil dispute resolution in Victoria in the following
ways:
All plaintiffs in civil disputes have an opportunity to present evidence
and legal argument that persuades the decision-maker (such as a
court or tribunal) of their entitlement to a remedy for some injury
caused by the defendant (that is, the chance to present their case in
its best light).
TOPIC 2.1
PRINCIPLES OF JUSTICE
All plaintiffs in civil disputes have an opportunity to present evidence
and legal argument that persuades the decision-maker (such as a
court or tribunal) of their entitlement to a remedy for some injury
caused by the defendant (that is, the chance to present their case in
its best light).
All defendants in civil disputes have an opportunity to:
Know what evidence the plaintiff will present to prove that he or
she is responsible for the plaintiff’s injury.
Test the accuracy and reliability of that evidence put forward by
the plaintiff.
Present evidence and legal argument to persuade the decision-
maker (such as a court or tribunal) that they are not liable for the
plaintiff’s injury (that is, the chance to present their defence in its
best light).
Outcomes and remedies provided are based upon the law and facts
of the case. Decisions are not based on bias (prejudice) for or against
parties due to their race, gender, age or political beliefs.
Plaintiffs and defendants are able to engage legal representation –
an expert to prepare and present their evidence and legal argument.
Resolutions and remedies are provided with minimal delay, as
delays can compound the suffering of those awaiting a remedy and
cause anxiety to those defending a civil claim.
 TOPIC 2.1
PRINCIPLES OF JUSTICE
EQUALITY

‘Equality’ is defined in the VCAA Legal Studies Study Design as ensuring ‘all
people are treated equally before the law, with an equal opportunity to
present their case’.

Details:

Equality is upheld through the civil justice system in Victoria in the

following ways:
Plaintiffs and defendants are treated in the same manner by all
those within the legal system, regardless of factors such as their age,
gender, religion or disability.
Similar cases should have a similar outcome. In particular, awards of
damages for similar injuries should be of an alike amount, regardless
of whether a plaintiff is famous, young, old, financially disadvantaged,
etc.
Court procedures (for example, the presentation of evidence) are
applied equally to all who seek a remedy or are defending a claim.
 TOPIC 2.1
PRINCIPLES OF JUSTICE
ACCESS

‘Access’ is defined in the VCAA Legal Studies Study Design as ensuring

individuals in society have an ‘understanding of legal rights and ability to
pursue their case’.

Details:
Access is upheld in the resolution of civil cases in the following ways:
Those who suffer injury know that they have a legal right to seek a
remedy, such as financial compensation.
Individuals know which dispute resolution body or process is the
most appropriate to use when seeking redress for a civil wrong that
has caused injury (either the courts, a tribunal like VCAT, a method
such as mediation, etc).
It is clear how to commence and conduct a civil proceeding to
remedy an injury.
Injured persons are able to afford the fees associated with pursuing
a remedy through the courts, a tribunal or a less-formal dispute
resolution process such as mediation.
If defending a claim for compensation, knowing how to present
evidence that disproves the injured party’s claims.
If defending a claim for compensation, knowing what lawful defences
may apply to reduce one’s liability (for example, knowing that after a
car accident a defendant may be able to argue lawfully that the
plaintiff contributed to their own injury).
Unsuccessful parties know whether they have a right to appeal
against the outcome, including the amount of damages awarded and
the appropriate court to appeal to..
TOPIC 2.1 QUESTIONS
1. Describe fairness as one of the principles of justice. Provide
one example of how fairness is upheld through civil dispute
resolution in Victoria.

2. Describe equality as one of the principles of justice. Provide one

example of how equality is upheld through civil dispute resolution in
Victoria.

3. Describe access as one of the principles of justice. Provide one

example of how access is upheld through civil dispute resolution in
Victoria

4. Explain the concept of access to justice. What barriers might

individuals face in accessing legal remedies, and how can these
barriers be addressed?
TOPIC 2.2
METHODS FOR CIVIL RESOLUTIONS
OVERVIEW:

When a civil dispute arises, it needs to be resolved in some way or another.

A person who has been harmed can either abandon the claim that they
may have, or they can try to resolve the dispute and seek a remedy for the
harm they have suffered. A party to a civil dispute can use various methods
to reach an agreement about how to settle that dispute. These are called
dispute resolution methods and are a way to obtain an outcome in a civil
dispute. These methods can be less stressful and less expensive than court
actions and, in some situations, even less stressful and less expensive than
issuing a claim through a tribunal.
TOPIC 2.2
METHODS FOR CIVIL RESOLUTIONS
MEDIATION:

Mediation involves a third party (a mediator) who assists the disputing

parties to resolve their conflict. The mediator’s role is to bring the disputing
parties to the table and assist them to identify issue which caused or is
causing the conflict, and to explore options to resolve the dispute.
Mediators are often trained to seek cooperation from both parties and help
the parties to find their own solutions to the dispute. A mediator may
suggest a possible solution to how their dispute may be resolved, but ‘has
no advisory or determinative role in regards to the content of the dispute
or the outcome of its resolution’. 57 Mediator helps parties to make their
agreement considering all options available to them under their
circumstances.
TOPIC 2.2
METHODS FOR CIVIL RESOLUTIONS
 TOPIC 2.2
METHODS FOR CIVIL RESOLUTIONS

ARBITRATION:

Arbitration is a process whereby parties to a dispute agree to be arbitrated

by an independent third party (an arbitrator) who assists the parties to
settle their dispute and reach an agreement. Whether agreement is
optional or compulsory will depend on the nature of the dispute. The
parties present their arguments to an arbitrator, who makes a
determination on the dispute. Arbitration is a less formal way of settling
disputes than courts and has been used to resolve complex industrial
disputes.
TOPIC 2.2
METHODS FOR CIVIL RESOLUTIONS
TOPIC 2.2
METHODS FOR CIVIL RESOLUTIONS
THE ROLE OF A JURY IN A CIVIL TRIAL:
One of the methods that can be used to resolve a civil dispute is by suing a
party through the courts. In some cases, a jury may be used to decide the
case. The jury system is a trial by peers. Jury members are chosen at
random. The jury must listen to all the evidence and make a decision based
on the facts, in light of the law that the judge has explained to them. The
jury then decides whether the plaintiff has been successful.

Unlike in some criminal cases, there is no automatic right to a jury in a civil

trial. Civil jury trials are rare, largely because of the fees involved, and often
because civil trials are so complex that parties will elect to have a trial by
judge alone. Juries, however, are sometimes used in defamation cases.

The jury's decision is made on the balance of probabilities. If a unanimous

verdict (all members agree) cannot be reached, a majority verdict (most
members agree) will be accepted. Jurors are not required to give reasons
for their decisions. Like criminal juries, a civil jury is not allowed to
undertake its own investigations or enquiries about the case and must
make a decision based on the facts that have been presented in trial.
Penalties apply to jurors who make enquiries or obtain information about
anything related to the trial.
Juries are seen to ensure to ensure that justice is administered in line with
community standards, rather than in line with the view of a small number of
people (the judges). The use of the jury system also enables the community
to participate in the administration of justice.

The jury system seeks to uphold equality and impartiality. It does this by
ensuring that jury members have no knowledge of a party or a witness,
have no biases or preconceived notions, and are able to make a decision
based on facts, and not based on any biased views that may be held by
them.
TOPIC 2.2 QUESTIONS
1. What is mediation?

2. What is conciliation?

3. Desribe the main difference between mediation and arbitration?

4. Why are these methods of dispute resolution favoured over

going to court?

5. What is the role of a jury in a civil trial?

6. What type of civil case is more likely to use a jury?

7. Identify three features of conciliation as a method of dispute

resolution?

8.Compare mediation and conciliation as methods of civil dispute

resolutions?

9. How does arbitration promote 'Fairness' in comparison to the

other methods?
TOPIC 2.3
TYPES OF REMEDIES AND SANCTIONS

REMEDIES:

A civil remedy is an order from the court (or another dispute

resolution body) which upholds the plaintiff’s civil rights by providing
relief for the loss or injury they have suffered.

DETAILS:

Remedies awarded by the courts include:

damages
injunctions

The overarching purpose of all civil remedies is to restore the plaintiff

to the position they were in before their rights were infringed.
TOPIC 2.3
TYPES OF REMEDIES AND SANCTIONS

DAMAGES:
Have you ever wondered how plaintiffs whose civil rights have been
breached are compensated for their loss?
Damages are an award of monetary compensation to the plaintiff, to
be paid by the defendant.
Damages can be classified into different categories:
1. Compensatory damages are the most common damages
sought and can be separated into three sub-categories:
a. Specific: have a precise value and are easily quantifiable. For
example, medical bills, damage to property, lost items.
b. General: do not have a precise value and are not easily
quantifiable. For example, pain and suffering, loss of quality of
life, shortened life expectancy.
c. Aggravated: further compensation for humiliation and insult.
For example, loss of reputation, embarrassment, distress.
2. Nominal damages are a small amount of money (usually valued
at $1) awarded to acknowledge that the defendant did breach the
rights of the plaintiff, but there was no harm/loss involved.For
example, tainted reputation but no substantial damage, touching
a person without causing harm.
3. Exemplary damages are an additional sum of money (awarded
to a plaintiff in addition to compensatory damages) that seeks to
punish a defendant for an extreme infringement of rights and, to
some extent, deter others from undertaking similar actions. Such
awards are not common.For example, cruelty or revenge in
disregarding the plaintiff’s rights (such as a plaintiff seeking
damages from a defendant for the intentional torts of battery and
false imprisonment following a violent or sexual assault).
TOPIC 2.3
TYPES OF REMEDIES AND SANCTIONS
TOPIC 2.3
TYPES OF REMEDIES AND SANCTIONS
TOPIC 2.3
TYPES OF REMEDIES AND SANCTIONS

INJUNCTIONS:
How do courts stop a defendant from acting in a way which infringes
the civil rights of a plaintiff? Injunctions are court orders compelling a
party to do something, or preventing a party from doing something.

There are two types of injunctions

1. Mandatory injunctions force parties to do something. For
example, a demand for a written apology.
2. Restrictive injunctions prevent parties from doing something.
− For example, preventing a property from being sold.

Injunctions may be short-term or operating indefinitely:

Interlocutory injunctions are temporary. − For example, a
short-term injunction to prevent the demolition of a house, until a
court can resolve a dispute regarding whether the owner is or is
not entitled to demolish it.
Perpetual injunctions are permanent. − For example, an
injunction instructing a publisher to not print a defamatory book.

The purpose of an injunction is to change the situation for the benefit

of the plaintiff. This may include:
1. Restoring the plaintiff to the position they were in before
the defendant infringed their rights. − For example, a
mandatory injunction requiring an apology for a defamatory
publication.
2. Preventing harm to the plaintiff. − For example, a restrictive
injunction preventing the construction of a building that, if built,
would block out all natural light in an existing home.
TOPIC 2.3
TYPES OF REMEDIES AND SANCTIONS
 TOPIC 2.3
TYPES OF REMEDIES AND SANCTIONS
SANCTIONS:
When imposing a sanction on an offender, the courts will aim to achieve
one (or several) of the five purposes of criminal sanctions, though it is
not always possible for a particular sanction to fulfil all purposes. The five
purposes of sanctions are outlined in section 5(1) of the Sentencing Act
1991 (Vic).

TYPES OF SANCTIONS:
There are many sanctions the courts may impose upon those who plead
guilty to (or are found guilty of) criminal offences. These sanctions
include:
1. Fines
2. Community Correction Orders
3. Imprisonment
 TOPIC 2.3
TYPES OF REMEDIES AND SANCTIONS
FINES:
A fine is a monetary payment the court will order an offender to make,
as a penalty for a criminal offence. A fine is calculated in penalty units –
the current value of a penalty unit is $165.22 (from 1 July 2019 to 30
June 2020). For example, if an offender is required to pay a fine of two
penalty units for shoplifting, the amount they must pay would be
$330.44 (2x $165.22).

COMMUNITY CORRECTION ORDER:

A community correction order (CCO) is a sanction that the guilty
offender must serve whilst remaining in the community, and involves
specific conditions the offender must follow. The conditions are chosen
based on the individual circumstances of the offender and will often aim
to address the underlying causes of the criminal behaviour.

The conditions imposed upon an offender through a CCO come in two

forms:
1. Mandatory conditions – these are conditions which apply to every
offender who is given a CCO.
2. Optional conditions – these are conditions that are specific to the
circumstances of the offender.
 TOPIC 2.3
TYPES OF REMEDIES AND SANCTIONS

IMPRISONMENT:
Imprisonment involves restricting the offender’s freedom and personal
liberties by removing them from the community for a set period of time
and placing them under the control and supervision of the state. This is
the most severe sanction available to Australian courts. Imprisonment is
the ‘sanction of last resort’ and is only to be imposed when there is no
other penalty available that is appropriate to achieve the relevant
aims/purposes of sentencing.
TOPIC 2.3 QUESTIONS
1. Describe the term ‘civil remedies’ and identify the overarching
purpose of all civil remedies. (3 MARKS)

2. Describe the term ‘injunction’ and provide an example of the two

types of injunctions. (3 MARKS)

3. List four different types of damages. (2 MARKS)

4. Provide an example of when a mandatory injunction may be an

appropriate remedy?

5. Ellanora, 19, was found with 30 grams of cocaine in her car and
12 stolen smartphones which she intended to sell (for cash).
Ellanora has no prior convictions but did admit to a drug addiction.
The prosecution believe that given the seriousness of her offending
Ellanora should be sentenced to a term of imprisonment. Identify
and define one sanction that may be appropriate in this case if
Ellanora is found guilty. Justify your response. (4 MARKS)

6. James, 21, has been convicted of possession of a commercial

quantity of an illicit substance with the intention to traffick this drug.
He was caught with a significant quantity of marijuana in his car. The
only other involvement James has had in the past with the criminal
justice system was a minor assault charge at the age of 18, for
which he was found guilty and fined. Since that time, James has
admitted to developing a drug dependency, and has dropped out of
university as a result. The judge in James’ case is trying to determine
what is an appropriate sanction to impose. Advise the judge on an
appropriate community–based sanction and justify your suggestion.
In your answer, provide a definition for the sanction you have
chosen. (5 MARKS)
 TOPIC 3.1
THE ROLE OF THE HIGH COURT

The High Court is the highest court in the Australian Judicial system. It was
established in 1901 by section 71 of the Constitution.

Section 71 of the Constituion:

The judicial power of the Commonwealth shall be vested in a Federal Supreme
Court, to be called the High Court of Australia, and in such other federal courts
as the Parliament creates, and in such other courts as it invests with federal
jurisdiction. The High Court shall consist of a Chief Justice, and so many other
Justices, not less than two, as the Parliament prescribes

WHAT IS THE PURPOSE OF THE HIGH COURT?

Laws made by the nine Parliaments (State, Territory and Federal) in
Australia must be made with proper constitutional authority. It is the High
Court that ultimately decides whether legislation meets this requirement.
As well as examining the words in the Constitution, the Justices consider
history, previous decisions and principles of law.

The functions of the High Court are to

Interpret and apply the law of Australia

To decide cases of special federal significance including challenges to
the constitutional validity of laws
To hear appeals, by special leave, from Federal, State and Territory
courts.
To resolve disputes between states and/or the federal government,
Disputes in which the Commonwealth is a party.

The High Court also has the power to hear appeals from Federal, State and
Territory Courts
TOPIC 3.1
THE ROLE OF THE HIGH COURT

CASE STUDY 1
Legal Aid- Dietrich v The Queen (1992) HCA 57
In December 1986, Olaf Dietrich arrived in Melbourne after a trip
to Thailand. He was arrested the next day by the Australian
Federal Police and was charged with importing seventy grams of
the drug heroin. There was compelling evidence that Dietrich
had swallowed small packets of the drug to smuggle them
through customs. He claimed in court the drugs had been
planted by the Police. Dietrich was charged in County Court of
Victoria on four charges relating to drug trafficking under the
Customs Act 1901 (Cth). During the trial he had no legal
representation. He had applied for assistance from the Legal Aid
Commission of Victoria but they would not represent him unless
he agreed to plead guilty to all charges. He also applied to the
Supreme Court of Victoria for legal assistance but this request
was also denied. He was convicted in the Victorian County Court
of three out of four charges brought against him. Dietrich
appealed his convictions to the Supreme Court, but the Court
refused to hear his appeal. He appealed to the High Court of
Australia. A majority of judges in the High Court decided that
Dietrich had the right to a fair trial, and that the lack of legal
representation meant that the original trial was unfair. The
justices also concluded that when an accused, through no fault
of their own, does not have legal representation when charged
with a serious offence, a judge may order the trial be stayed
(delayed) until legal representation is available.
TOPIC 3.1 QUESTIONS
1. Identify the purpose of the High Court?

2. Can the High court rule on a case that is taking place in Western
Australia? If so then why?

3. In terms of Dietrich V the Queen, why did the case get referred to
the High Court? What was the court's ruling?
 TOPIC 3.2
THE VICTORIAN COURT HIERARCHY
The court hierarchy refers to how the courts in Victoria are arranged, from
least to most formal and superior.

WHAT IS THE COURT HIERARCHY?

The courts are ranked based on their status and authority to hear
different types of matters.
The ranking of courts is closely related to their jurisdiction. That is, their
power under law to hear and determine particular types of matters
The lowest court (the Magistrates’ Court) hears a high volume of less
serious, less complex matters, which are resolved relatively quickly.
The further up the hierarchy you look, the fewer cases each court
resolves, but the more complex and time–consuming such cases are.
 TOPIC 3.2
THE VICTORIAN COURT HIERARCHY
COURTS JURSIDICTION
Jurisdiction A court’s ‘jurisdiction’ refers to the boundaries of power a
particular court has to hear and determine disputes:

Original jurisdiction: the court’s power to hear a case ‘at first instance’
(that is, when a case has never been heard in any other court before).
Appellate jurisdiction: a court’s power to hear a case on appeal (that is,
once a case has already been tried and a party seeks a review of some
aspect of the decision).
Criminal jurisdiction: a court’s power to hear criminal matters (the
prosecution of criminal offences by the police and the Office of Public
Prosecutions).
Civil jurisdiction: a court’s power to hear civil maters (disputes between
two parties concerning an infringement on the rights of one party).

A case cannot be appealed in the High Court unless the parties convince the
Court in a preliminary meeting that there are special circumstances for the case
to be appealed. Decisions of the High Court on appeals are final.
TOPIC 3.2
THE VICTORIAN COURT HIERARCHY
TOPIC 3.2 QUESTIONS
1. Match each of the following terms to the corresponding definitions.

• appellate jurisdiction
• original jurisdiction
• civil jurisdiction
• criminal jurisdiction

a) ___________ the power of a court to hear criminal matters (the prosecution of criminal
offences by the police and the Office of Public Prosecutions)

b) ___________ the power of a court to hear a case on appeal (that is, once a case has already
been tried and a party seeks a review of some aspect of the decision)

c) ___________ the power of a court to hear civil matters (disputes between two parties)

d) ___________ the power of a court to hear a case ‘at first instance’ (that is, when a case has
never been tried before)

2. Sarah has initiated a civil claim against her former employer and
is seeking $80,000 in damages. Sarah’s claim will most likely be
heard in which court and why?

3. Ben is a criminal offender who was found guilty of minor assault

in the Magistrates’ Court and sentenced to a term of 12 months’
imprisonment. Ben wishes to appeal the sanction that was imposed
on him by the Magistrates’ Court. His appeal will be heard in which
court?

4. Simon Fortune, 40, was charged with kidnapping. His trial was
heard in the County Court of Victoria, and he was found guilty and
sentenced. Simon intends to appeal. Which court would hear his
case and explain ONE reason why a court hierarchy is beneficial in
this case.
TOPIC 3.3
REASONS FOR THE VICTORIAN COURT HIERARCHY

There are a number of reasons for the existence of a court hierarchy,

including:
specialisation
administrative convenience
appeals
the doctrine of precedent.

SPECIALISATION:

.Specialisation refers to the expertise of each of the courts in hearing

certain types of cases. A court hierarchy delivers specialisation by assigning
each court a defined jurisdiction – a set of criminal or civil matters that each
court hears regularly.

What is the benefit?

The court hierarchy allows court staff to specialise in providing
particular services or hearing particular cases.
For example, the Supreme Court has judges who specialise in hearing
serious indictable offences, such as murder cases, as well as large and
complex civil disputes, such as class actions, whereas the Magistrates’
Court specialises in hearing minor offences, such as traffic offences, or
minor civil disputes.
The skill and expertise developed by regularly conducting similar cases
allows for more just and accurate outcomes and a more timely
resolution of cases.
 TOPIC 3.3
REASONS FOR THE VICTORIAN COURT HIERARCHY

ADMINISTRATIVE CONVENIENCE:

Administrative convenience comes from separating minor offences and

disputes that are heard by lower courts from the more serious, complex
and time–consuming cases that are heard in higher courts.

What is the benefit?

The superior courts (such as the Supreme Court) are able to devote
more time and resources to long, complex disputes without the court
being ‘clogged up’ by also resolving minor disputes.

The lowest court (the Magistrates’ Court) can quickly resolve a large
number of relatively minor disputes, minimising delays for parties to
such disputes

APPEALS:
An appeal is a request made to a superior court, to review and (if
successful) alter a previous decision made by a lower court. Thus, when a
matter is heard for a second or third time, it is being heard ‘on appeal’.
Typically an applicant (the party to a case that is seeking an appeal)
needs to prove that they have ’grounds’ (reasons) as to why they
deserve to have their appeal heard. In many instances there is no
automatic right to have one court’s decision reviewed by a higher court
– in superior courts such as the Court of Appeal and the High Court, a
dissatisfied party to a civil or criminal matter must be given leave
(permission) to appeal.
Appeals may be made on a point of law, a question of fact, or on the
sanction (criminal) or remedy (civil) imposed by the court.
 TOPIC 3.3
REASONS FOR THE VICTORIAN COURT HIERARCHY
A court hierarchy is necessary for appeals to operate because without
the courts being ranked from lower to higher courts, it would not be
possible to have decisions reviewed and mistakes corrected by a
superior court.

What is the benefit?

The ability for a party to appeal the outcome of a case promotes

fairness in the justice system by allowing for a case to be reheard if
there are sufficient grounds.

THE DOCTRINE OF PRECEDENT

The doctrine of precedent is the legal mechanism by which decisions made

in higher courts are followed in future, similar cases that arise in lower
courts.
As you learned in Lesson 1D, the doctrine of precedent is based upon
the principle of ‘stare decisis’ – to stand by what has been decided in
the past.

This means that cases with similar facts will be decided in a similar
manner to ensure consistency, predictability and justice.

Courts lower in the hierarchy must follow the decisions of superior

courts in the hierarchy when resolving cases that have similar facts.

To uphold this principle, the courts must be ranked in a system of

superior courts and lower courts.
 TOPIC 3.3
REASONS FOR THE VICTORIAN COURT HIERARCHY
What is the benefit?

The doctrine of precedent promotes fairness in the justice system by

ensuring that like cases are decided in a similar way.

This provides some certainty and predictability for parties to civil and
criminal cases, as to what the outcome may be in their case and
ensures consistency in decisions made by judges.
TOPIC 3.3
REASONS FOR THE VICTORIAN COURT HIERARCHY

CASE STUDY 2
The Queen v Dookheea (2017) HCA 36

Dookheea was found guilty and convicted of beating and

strangling Zazai to death. Dookheea appealed this conviction in
the High Court of Australia on the grounds that the judge in the
original trial had incorrectly advised the jury of the meaning of
‘beyond reasonable doubt’. See comments from the High Court
below to enhance your understanding of the criminal standard
of proof:
‘If you [the jury] are not satisfied beyond reasonable doubt
of the elements of the offence, then you should find Mr
Dookheea not guilty of that offence.’
‘If you [the jury] are not sure – and that is the collective
state of your minds: did he, didn’t [he], we don’t know – you
will acquit him because you would not be satisfied beyond a
reasonable doubt.’
‘A reasonable doubt is not just any doubt that jurors might
entertain, but rather what a reasonable jury considers to be
a reasonable doubt.’
‘Beyond reasonable doubt is not something that is capable
of expression on some sort of percentage basis.
 TOPIC 3.3 QUESTIONS
1. Fill in the blank spaces:

A court _________ facilitates the ___________ by ensuring that the

courts are arranged according to their ________, and enabling lower
courts to follow the decisions of __________.

A. system; doctrine of precedent; power; lower courts

B. hierarchy; doctrine of precedent; jurisdiction; higher courts
C. hierarchy; appeals process; jurisdiction; higher courts
D. system; appeals process; power; lower courts

2. Recently a critic of the Australian legal system commented that a

hierarchy of courts is not necessary. Explain one reason to justify the
existence of the court hierarchy.

3. Distinguish between specialisation and administrative

convenience as reasons for the court hierarchy

4. Paul was charged with armed robbery. His trial was heard in the
County Court of Victoria and he was found guilty and sentenced.
Paul intends to appeal.

a) Identify the court that would hear Paul’s appeal and outline its
criminal appellate jurisdiction.
b) Other than appeals, explain one reason why a court hierarchy is
beneficial in this case.
 TOPIC 3.3 EXTENDED
Trish was in a car accident with Greg because Greg was travelling at
extreme speeds and lost control of his vehicle. Greg was charged with
dangerous driving and found guilty in the County Court. In accordance
with current sentencing statistics and trends, he was sentenced to 1 year
and 6 months’ imprisonment. However, Trish suffered a number of
injuries as a result of the accident and is now faced with expensive
medical bills. She also experienced much pain and suffering and will have
a permanent disability due to her injuries.

Trish is glad to see Greg convicted and sentenced for his offence, but she
would also like compensation for her loss. Trish initiates a case against
Greg in the County Court.

Trish hires her own private lawyer and Greg, who cannot afford legal
representation, is provided assistance by Victoria Legal Aid. The parties
present their cases in accordance with rules of evidence and procedure
and the court ultimately finds in favour of Trish.

a) Is this an example of criminal or civil law? Justify you answer. (3 MARKS)

b) If Greg wanted to appeal the decision made in the County Court in

relation to the dangerous driving charge, which court would hear the
appeal? Outline the original and appellate jurisdiction of this court. (3
MARKS)

c) Describe one benefit of a court hierarchy in this case. (3 MARKS)

d) Identify and describe two ways in which the principles of justice were
upheld in this
case. (4 MARKS)
TOPIC 4.1
THE MABO CASE
THE ROLE OF THE INDIVIDUAL TAKING A CASE TO
COURT
OVERVIEW:
Mabo was one of 5 men from the island of Mer (in the Murray Islands, in
the Torres Strait) to initiate a High Court action in 1982, claiming ownership
of the land on Mer and seeking recognition of Indigenous Australians’
original ownership of the land prior to British settlement in 1788.

DETAILS:
Mabo was born on Mer in 1936 and named Eddie Sambo. His mother died
just a few days after his birth, and he was adopted and raised by his uncle
and aunt. His surname was changed to Mabo (his uncle’s surname).

As a young man, Mabo was banished from Mer by Queensland authorities

for drinking alcohol, and he worked and lived in Townsville. During his time
in Townsville he established a school for Indigenous children to better
understand their culture and history, and he was active in encouraging
people to vote ‘yes’ in the 1967 referendum to remove discrimination
against Aboriginal Australians from the Constitution.

In 1981 Mabo attended a conference on Aboriginal land rights. Indigenous

leaders, students from James Cook University and legal experts attended
the conference. Presentations about land rights issues included:

Mabo making a speech about Murray Islanders' history of land

ownership and how land was transferred by inheritance.
TOPIC 4.1
THE MABO CASE

Legal experts arguing that a High Court case should be commenced

by members of an Indigenous community, to challenge the prevailing
legal position that Aboriginal Australians did not lawfully own the
land that was settled as NSW in 1788 (which eventually became
Australia). These lawyers argued that, even if such a case was
unsuccessful, the public debate caused by such a case might lead to
the Commonwealth Parliament passing laws to recognise Indigenous
Australians’ traditional connection to the land.

Mabo met with other Murray Islanders and legal experts at the
conference; as a group they decided to initiate a case in the High Court
of Australia.

The legal fight ultimately took 10 years. According to a member of his

legal team (Bryan Keon– Cohen QC), Mabo was driven by feelings of
injustice regarding how Indigenous Australians were treated in
Queensland and the racism he had himself been subjected to.

In initiating this claim, the plaintiffs sought a High Court declaration that
the Meriam people were the traditional owners of the Murray Islands,
and were legally entitled to possession and use of the islands.
TOPIC 4.1
THE MABO CASE
TOPIC 4.1 QUESTIONS
1. Explain the terms ‘native title’ and ‘terra nullius’.

2. Decisions by the High Court in cases like Mabo often lead to

parliament making laws. Explain why you think this may occur.

3. What legal repercussions could arise if the High Court states that
native title applies to all of Australia? How would this impact already
established regions?
TOPIC 4.2
FACTS AND RESULTS
OVERVIEW:
The facts in Mabo proved the Meriam people had an organised system of
land ownership, including clearly identified parcels of land that belonged to
individuals and were passed on by inheritance. The High Court was asked
to recognise this system of land ownership; all previous decisions of
Australian (and British) courts had assumed the continent was ‘the land of
no–one’ at the time of settlement and therefore belonged automatically to
the Crown in 1788, ignoring Indigenous Australians’ claims to possess and
access their traditional lands.

DETAILS:
PROCEEDINGS COMMENCED:

1982: the plaintiffs initiated proceedings in the High Court.

Since European settlement, Australian law had assumed the continent was
terra nullius at the time of settlement:

Legally, the ‘land of no–one’.

As a result of the terra nullius principle, the law determined that:

1. The Crown automatically took ownership of the entire continent at the
time of European settlement in 1788.
2. Indigenous Australians had no lawful claim to possession or ownership
of any land.

By extension of this principle of terra nullius, Queensland automatically

took control of the Murray Islands in 1879 when it annexed the islands
(that is, declaring the islands were now part of Queensland).
TOPIC 4.2
FACTS AND RESULTS
RESEARCHING THE FACTS:
1986: the High Court asked the Queensland Supreme Court to conduct
hearings and gather evidence about the Meriam peoples’ relationship to
the land on the Murray Islands.

QUEENSLAND ATTEMPTED TO TERMINATE MABO’S CLAIM

1985: the Queensland Parliament passed legislation to extinguish (with no
compensation payable) any Torres Strait Islanders’ legal claim to ownership
of property in the Murray Islands.

1986: the High Court (in Mabo v Queensland (No. 1)) declared this
Queensland legislation invalid:

Sections 9 and 10 of the Racial Discrimination Act 1975 (Cth) make it

unlawful to discriminate against a person on the basis of race and
require equal treatment of all persons regardless of race.
The 1985 Queensland law took away the property rights of the Torres
Strait Islands without compensation.
The Commonwealth and Queensland laws were therefore inconsistent.
According to s. 109 of the Australian Constitution, if state and
Commonwealth laws are inconsistent, the Commonwealth law prevails
and the state law is declared invalid.
The Queensland law (which was an effort to terminate Mabo’s claim)
was struck down.
TOPIC 4.2
FACTS AND RESULTS
THE SUPREME COURT’S FINDINGS OF FACT
1990: Justice Moynihan of the Queensland Supreme Court published his
findings:
Justice Moynihan concluded the people of Mer had a traditional system
of land and property ownership.
Mabo was not personally successful in proving his ownership of land on
Mer. Justice Moynihan doubted whether Mabo’s adoption by his uncle
(Benny Mabo) was to be recognised lawfully, which undermined his
claim to have inherited the land owned by his uncle. The Court
accepted there was Mabo land on Murray Island, but questioned
whether Eddie Mabo had lawfully inherited such land.
Despite Mabo’s claim being undermined, the case continued with a
focus on the other plaintiffs’ claims of land ownership on Mer.

THE ISSUES RAISED BY MABO’S CLAIM

The plaintiffs argued that the legal assumption that Australia was terra
nullius was incorrect. Instead, Mabo asked the Court to accept that
Indigenous Australians owned the land at the time of settlement
(ownership known as ‘native title’) and that this land ownership continued
after European settlement.

THE RIGHTS IN QUESTION WERE:

Should the Australian legal system now recognise Indigenous Australians’
ownership of land prior to British settlement?

1. If so, how is this affected by that land now being farmed, mined, lived
on, used as parkland and so on?
2. If an Indigenous community can prove a connection to traditional land
that will be used by others, how are these competing interests to be
reconciled?
TOPIC 4.2
FACTS AND RESULTS
TOPIC 4.2 QUESTIONS
1. A majority of the High Court accepted the Meriam people’s
claim to native title rights over the land in the Murray Islands.
What was the reasoning for Justice Dawson’s dissenting
judgement?

2. How did the Supreme Court ruling of traditional ownership affect

Mabo's specifically and not the entire case?

3. According to the High Court, some acts extinguish native title,

whilst others do not. Consider the following actions:
I) The government granting land to itself to build an airport.
II) A parcel of land being granted to sheep graziers in the 1920s, which has since
been bought and sold on two separate occasions.
III) An Indigenous community being removed from its traditional lands, in what is
now suburban Melbourne.

4. Read this extract from Justice Brennan’s written judgement in

Mabo:
The common law of this country would perpetuate injustice if it were to continue to
embrace the enlarged notion of terra nullius and to persist in characterising the
indigenous inhabitants of the Australian colonies as people too low in the scale of social
organisation to be acknowledged as possessing rights and interests in land.
What would be the consequences if the notion of 'terra nullius' was
still used in society?
TOPIC 4.3
DECISION AND IMPACT

THE LAWS THAT APPLIED TO THE CASE

OVERVIEW:
Since the 1800s the courts had accepted the legal view that Australia
was terra nullius at the time of settlement.

DETAILS:
In 1889 the Privy Council (then the highest court in the Australian
court hierarchy) decided in Cooper v Stuart that no land ownership
existed in NSW prior to 1788. That is:
The terra nullius principle was accepted.
The Crown automatically owned all land in Australia from 1788
onward.
Indigenous peoples had no lawful entitlement to use and
possess the land they had inhabited for many thousands of years.

This decision had never been amended by Australian courts (nor the
Commonwealth Parliament).

By the time of the Mabo application the High Court of Australia was
the highest court in the nation, not bound to follow previous
judgements and free to change the law if needed.
TOPIC 4.3
DECISION AND IMPACT
THE OUTCOME OF THE CASE AND ITS IMPACT ON THE
RIGHTS OF INDIVIDUALS AND ON THE LEGAL SYSTEM

OVERVIEW:

By a 6:1 majority the High Court decided in favour of the Meriam

people.

DETAILS:

In Mabo v Queensland (No. 2) [1992] the High Court accepted the

claim of Mabo and his co–plaintiffs that Australia was not terra nullius
at the time of British settlement, and it would be wrong to allow the
law to continue to reflect this incorrect assumption. Rather, in 1788
Indigenous Australians did have a legal entitlement to the land and
these land rights (native title) continued after settlement.

THE HIGH COURT'S REASONING.

TOPIC 4.3
DECISION AND IMPACT
TOPIC 4.3
DECISION AND IMPACT

THE DECISION
By a 6:1 majority, the Court rejected the terra nullius principle and
recognised Indigenous Australians’ native title rights to land across
Australia.

THE IMPACT OF THE DECISION ON MABO

Eddie Mabo not only had his personal claim to land rights on Mer
rejected by the Court, but died a few months before the Court
delivered its judgement in this case. However, one of the most
significant decisions in the Court’s history bears his name.

THE IMPACT OF THE DECISION ON MERIAM PEOPLE

The Court recognised that ‘the Meriam people are entitled as against
the whole world to possession, occupation, use and enjoyment of the
island of Mer.’

THE IMPACT OF THE DECISION ON OTHER INDIGENOUS

AUSTRALIANS
As highlighted by Justice Brennan, some Indigenous communities
(especially those in eastern Australia) enjoyed no practical benefit from
the Mabo verdict:
TOPIC 4.3
DECISION AND IMPACT
As highlighted by Justice Brennan, some Indigenous communities
(especially those in eastern Australia) enjoyed no practical benefit from
the Mabo verdict:
Their traditional lands had been inhabited and sold many times
since European settlement; and/or
Indigenous groups had been forced from their land as settlers
spread throughout the colony of NSW during the 19th century;
therefore
It was difficult or impossible for such groups to prove a continuing
connection to the land since 1788. In more remote parts of
Australia, Indigenous communities were now able to assert a lawful
‘say’ in how their traditional lands were used for activities such as
mining and farming; this new legal entitlement opened the way to:
Indigenous Australians being able to access certain land (for
hunting, traditional ceremonies, etc.) even if it was also being used
for other purposes, such as farming; and/or
Compensation when access to such land was restricted by
activities such as mining.
The process of proving native title and asserting such rights was
clarified by legislation shortly after the Mabo decision.
TOPIC 4.3
DECISION AND IMPACT
THE IMPACT OF THE DECISION ON THE LEGAL SYSTEM
Following Mabo the Commonwealth Parliament passed the Native
Title Act 1993 (Cth).

The Native Title Act 1993 (Cth) codified the legal recognition of native
title. The Act also:

Clarified how Indigenous communities can prove and register

their native title rights to particular parcels of land.
Set up a process for Indigenous groups, governments and
farming/mining businesses to negotiate agreements regarding
how traditional lands are used for commercial farming and mining
activities, while also preserving native title holders’ rights to use
that land for hunting, spiritual activities, etc.:
1. There are now over 1,000 Indigenous Land Use Agreements in
place that balance Indigenous communities’ rights to use and
possess traditional land, with activities such as farming and
mining.
2. The National Native Title Tribunal and Federal Court manage
these processes.
Determined which acts extinguish native title, codifying the
practical impact of the Court’s decision
native title rights are extinguished on land used for residential
housing and schools, roads, etc.
Established guidelines for compensation to be paid to Indigenous
communities when their native title rights have been
extinguished. Native title rights have now been recognised over
approximately 30% of Australia (including access to land,
waterways and beaches) – around 2,000,000 km2 .
TOPIC 4.3 QUESTIONS
1. To accept the Meriam people’s claim, what did the High Court
decide about the terra nullius principle? Identify two reasons for
the Court making this decision regarding terra nullius.
(3 MARKS)

2. ‘The Mabo decision makes it clear that in 1788 Indigenous

Australians owned the land my local railway station is built on, and
the same Indigenous group owns that land now.’ Is this correct or
incorrect? Justify your response. (4 MARKS)

3. Is the passage of the Native Title Act 1993 (Cth) an example of

the codification or abrogation of common law? Give reasons for
your response. (3 MARKS)
TOPIC 4.3 SAMPLE
ANSWERS
1.

2.
TOPIC 5.1
THE AUSTRALIAN CONSTITUTION
WHAT IS THE CONSTITUTION

A constitution is a document that outlines the rules and principles that

guide the way an organisation, state or nation is governed.

In general it outlines the aims of the organisation, state or nation and

rules regarding how it is to be governed and how it operates.

Australia also has a national or Commonwealth Constitution that

outlines how our nation is to be governed.

The Australian Constitution, which came into operation on 1 January

1901, is the document that created and outlined the law-making
powers of the Commonwealth Parliament and created the High Court
of Australia.

PURPOSE OF THE CONSTITUION:

Established a federal system of government in Australia – it consisted of

six states, each with the power to make laws for the residents of that
state and one central or federal parliament, with the power to make
laws that apply to the entire country.

Created and outlined the law-making powers of the Commonwealth

Parliament

Outlines the structure of the Commonwealth Parliament, stating that it

must consist of two houses and the Crown

Created the High Court of Australia to resolve disputes over the

meaning of the Constitution
TOPIC 5.1
THEAUSTRALIAN
THE AUSTRALIANCONSTITUTION
CONSTITUTION

Outlined and protected some basic rights of the Australian people

by placing restrictions on the law-making powers of the
Commonwealth and state parliaments; For example: the
Constitution prevents the Commonwealth Parliament from making
law that imposes or restricts religious practices

Ensured that the Australian parliamentary system was based

upon various parliamentary principles, such as the principles of
representative and responsible government and separation of
powers.

HOW THE FEDERATION IS FORMED

In 1891, the first set of series of meetings, known as constitutional

conventions, were held where representatives from each colony
considered a draft constitution that would essentially create and
outline the law-making powers of the new central Commonwealth
Parliament.

After the draft constitution was approved by the representatives of

the colonies, the voters in each colony and the British Parliament, it
came into operation.

On Federation Day, 1 January 1901, Australia became a nation.

TOPIC 5.1
THEAUSTRALIAN
THE AUSTRALIANCONSTITUTION
CONSTITUTION
THREE REASONS FOR THE FEDERATION

To increase economic growth – Supporters of federation believed

the economy could grow more rapidly if the colonies had consistent
trade, banking and commercial laws and common infrastructure.

To improve national defence – the colonies could benefit from

having one uniform defence force that was capable of protecting all of
them instead of each colonies having their own militia.

To enhance the national identity – At the end of the nineteenth

century, with more than three quarters of the population being born in
Australia, many citizens felt an increased sense of national pride
recognising the Australian and to have a common immigration policy.
TOPIC 5.1
THEAUSTRALIAN
THE AUSTRALIANCONSTITUTION
CONSTITUTION
THREE BRANCHES OF THE AUSTRALIAN LEGAL SYSTEM

Legislative – The legislative power to make laws. For example: In

Australia the power to make laws is exercised by Parliament (i.e. the
Federal, State and Territory Parliament).
Executive – The Executive power to implement and administer laws. In
Australia the power to implement and administer laws is exercised by
the Executive which is the Government (i.e. the Federal, State and
Territory Governments).
Judicial – The judicial power to interpret and enforce the law when
disputes arise. In Australia, the power to interpret and enforce the law
is exercised by the Judiciary. The Judiciary is made up of all the courts
created at the Federal, State and Territory Level.
TOPIC 5.1 QUESTIONS
1. In your own words, define ‘constitution’

2. Outline three reasons why the Australian colonies agreed to

become a united federal nation on 1 January 1901.

3. Describe three main purposes of the Australian Constitution.

4 Explain why the Australian Commonwealth Parliament is often

referred to as federal parliament.

5.The people listed below had significant involvement in the

creation of Australia’s Constitution. Using the internet, research how
they influenced the Constitution and any other important roles they
held. Present your findings in a multimedia format, such as
PowerPoint or Publisher Brochure.
• Sir Henry Parkes
• Sir Edmund Barton
• Andrew Inglis Clark
• Sir Samuel Griffith
• Sir Richard Baker
• Sir Robert Randolph Garran
• Sir John Quick
TOPIC 5.2
REFERENDUM
SECTION 128

Section 128 of the Constitution sets out the referendum process,

stating that the Constitution can only be amended if the change is
approved by:

A majority of elected members in both houses of Federal Parliament

A majority of Australian voters and a majority of voters in a majority of

States (known as a double majority)

The Governor-General
TOPIC 5.2
REFERENDUM
STRENGTHS

It requires the support of the Australian public, which prevents a

federal government from changing the Constitution to benefit its own
agenda

A compulsory public vote means the Constitution is only changed if it

has great support from the entire community, rather than just a small
number of people who choose to vote

The requirement that a referendum must be passed by a double

majority of voters ensures that any change to the Constitution has a
large amount of public support, including support from most of the
states.

WEAKNESSES

Voters may vote against a proposal to change the Constitution if they

do not understand the proposal or are not interested in it

Proposals for change are unlikely to succeed if both major political

parties do not support the change, because many people vote in
accordance with the views of their chosen political party

The double majority provision is very difficult to achieve, particularly

the requirement for the residents of at least four states to support
the change

For convenience and to reduce costs, referendums are often held at

the same time as a federal election, and people are more concerned
with voting for the government rather than the proposal for
constitutional change.
TOPIC 5.2 QUESTIONS
1. Explain the significance of the "double majority" requirement in
Section 128 of the Australian Constitution.
2. Discuss the role of the Governor-General in the referendum
process as outlined in Section 128 of the Australian
Constitution.
3. Evaluate the strengths and weaknesses of the referendum
process outlined in Section 128 of the Australian Constitution,
considering its effectiveness in reflecting the will of the people
and protecting against arbitrary constitutional changes.
4. Discuss the significance of the requirement for a proposed
constitutional amendment to be approved by a majority of
voters in a majority of states, as specified in Section 128.
5. Outline the process for initiating a referendum on a proposed
constitutional amendment, as outlined in Section 128.
TOPIC 5.3
1967 REFERENDUM PROCESS
1967 Referendum - Behind the News
https://www.youtube.com/watch?v=pz7hrwgczPg

1967 REFEREDUM FACTS

A Referendum approved Commonwealth Constitutional change.

Section 127 of the Constitution was struck out in its entirety.
This amendment allowed Indigenous Australians to be counted in the
Commonwealth Census.
Section 51 of the Constitution was amended to allow the
Commonwealth to make special laws for Indigenous people.
Both Houses of the Parliament passed the proposed Act
unanimously; consequently a 'No' case was not submitted.
More than 90% of Australians registered a YES vote with all six states
voting in favour.

The 1967 referendum in Australia stands as a pivotal moment in the

nation's legal history, representing a significant step towards rectifying
entrenched discrimination against Indigenous Australians. This case study
sheds light on the intricate interplay between law, social justice, and
grassroots activism. Proposed amendments to the Constitution,
particularly targeting Sections 51(xxvi) and 127, sought to end exclusion
from the national census and discriminatory laws. The referendum, held
on May 27th, garnered overwhelming support, with 90.77% voting "Yes."
This historic victory reflected a growing legal consciousness within the
nation and laid the foundation for subsequent legislative reforms. The
referendum's legacy continues to reverberate in contemporary legal
discourse, serving as a reminder of the law's potential as a tool for social
change and its capacity to reflect evolving societal values and aspirations
towards justice and equality.
TOPIC 5.3 QUESTIONS
Use the Australian Electoral Commission website
https://www.aec.gov.au/Elections/referendums/ to research and
provide answers to the following questions:

1. Who is required to vote in a compulsory referendum?

2. What were the proposals and results of the last referendum
held in Australia (in 1999)?
3. What was the cost of the referendum held in Australia in 1999?
4. What was the date, proposal, and year of the first referendum
held after the Federation?
5. Which three referendums have been passed by the largest
majority of Australian voters?
TOPIC 6.1
KEY FEATURES OF GOVERNMENT
THE ROLE OF GOVERNMENT IN AUSTRALIA
Our system of government makes laws that reflect the prevailing views
and moral standards held by most Australians.

Our Governments aim to ensure that all Australians have access to basic
goods and services, including health care, food, housing, education,
roads, public transport and utilities such as water, electricity and internet
connection.

Government also supports all Australians in maintaining reasonable living

standards.This involves making sure that people who wish to work have
jobs and that those who are unable to work or find it difficult to work – for
example, the elderly, people with disabilities, carers, refugees and asylum
seekers – are provided with income support and access to basic goods
and services.
AUSTRALIA’S SYSTEM OF GOVERNMENT
Australia’s system of government is based on a federal parliamentary
system.

Parliament of the States and Territories: This means the nation is divided
into states, each of which has its own parliament that is responsible for
making laws for the residents of that state.
There is one Central or Federal parliament, which has the power to make
laws that apply to the entire country.

We have parliaments for each of the state and territories and One
Commonwealth Parliament which is located in our nation’s capital,
Canberra.

Each state and territory also has local governments. These are called local
or municipal councils and are given the power by the state and territory
parliaments to make local laws (by-laws) and provide services for a local
community.
TOPIC 6.1 QUESTIONS
1. Identify three roles of government in Australia.
2. Explain why Australia’s system of government is referred to as a
federal parliamentary system.
3. Outline three tasks performed by Australian parliaments.
4. Identify the premier or leader of your state or territory’s
government and the political party to which they belong.
5. Outline three laws that have been introduced or changed. Do
you support the introduction or change of these laws? Why or why
not?
TOPIC 6.2
THE SEPARATION OF POWERS
PRINCIPLES OF THE SEPARATION OF POWERS.

The concept of separation of powers is a fundamental principle in many

democratic systems, designed to ensure a system of checks and balances
within the government. It's typically divided into three branches:

Legislative: This branch is responsible for making laws. It's usually

embodied by a parliament, congress, or similar body that debates,
proposes, and votes on legislation.

Executive: This branch is responsible for implementing and enforcing

laws. It includes the president, prime minister, or other executive leaders,
along with their respective administrative agencies.

Judicial: This branch interprets the laws and ensures their

constitutionality. It's typically represented by the court system, which
resolves disputes and applies the law in specific cases.

The idea behind separation of powers is to prevent any one branch from
becoming too powerful and potentially abusing its authority. Each branch
acts as a check on the others, with mechanisms in place to ensure
accountability and prevent the concentration of power. This system is a
cornerstone of modern democratic governance and is enshrined in the
constitutions of many countries around the world.

To prevent corruption or an abuse of power by those in authority the principle

of separation of power provides that no one person, institution or branch of
government should exercise more than one of these powers at the same time.

LEGISLATIVE - The power to make law

EXCECUTIVE - The power to implement and administer the law
JUDICIAL - The power to interpret and enforce the law
TOPIC 6.2
THE SEPARATION OF POWERS
TOPIC 6.2 QUESTIONS
1. With reference to the separation of powers, explain why judges
may not be elected as members of parliament and serve in the
government.
2. Describe the principles upon which the Australian system of
government is based.
3. Create a flow chart that categorises the key principles of
Australia’s system of government.
TOPIC 6.3
AUSTRALIA’S COMMONWEALTH PARLIAMENT
COMMONWEALTH PARLIAMENT

Under Australia’s system of parliamentary government, the Executive

Government (the Prime Minister, Cabinet Ministers and other Ministers) is
drawn from Members of the parliament.

Although the government and the parliament have overlapping

memberships, they are established by the Constitution as separate
institutions, referred to respectively as the Executive and the Legislature.

The Commonwealth Parliament consists of two houses and the Crown.

The Commonwealth Parliament and each of the state parliaments (except

Queensland) are bicameral because they consist of a lower and an upper
house.

The parliaments of Queensland and territories are unicameral, because

they only have the lower house and the Crown.

The lower house of the Commonwealth Parliament is called the House of

Representatives and the upper house is called the Senate

The upper house in the Commonwealth Parliament, the Senate, consists

of 76 members – made up of 12 members elected from each of six states
and two members elected from each of the mainland territories (the
Northern Territory and the Australian Capital Territory).

All laws made by the Commonwealth Parliament must be passed or

approved by a majority of members in both houses of parliament and the
Crown.
TOPIC 6.3
AUSTRALIA’S COMMONWEALTH PARLIAMENT
THE SENATE
The upper house in the Commonwealth Parliament, the Senate, consists
of 76 members – made up of 12 members elected from each of six
states and two members elected from each of the mainland territories
(the Northern Territory and the Australian Capital Territory).
This structure is designed so that the Senate can, in theory, equally
represent the views, values and interests of each state of Australia.

The main role of the Senate is to:

Represent the interests of the states. It can prevent the Commonwealth
Parliament from passing laws that discriminate against any particular
state.
Initiate, discuss and review new laws.

THE HOUSE OF REPRESENTATIVES

The lower house in the Commonwealth Parliament, the House of
Representatives, consists of 151 members.
Each of the members is elected by eligible voters who live in one of
151 designated areas – called electoral divisions (or electorates) –
throughout Australia.
Members of the House of Representatives are elected for a three-year
term.

The main role of the House of representatives is to:

•Determine the government of the day.
•The government is the political party (or coalition of parties) that has
an absolute majority in the lower house.
•Discuss, debate and scrutinize proposals for creating and changing
Commonwealth laws.
•Most proposals for introducing new laws or changing existing laws
commence in the lower house.
TOPIC 6.3
AUSTRALIA’S COMMONWEALTH PARLIAMENT
THE CROWN
The third component of our Commonwealth Parliament is the Crown –
the British monarch, currently the Queen – who represented in the
Commonwealth Parliament by the governor-general.
The Governor-General is appointed by the Queen on the advice of the
Australian Prime Minister.

The current Governor-General, who took up his five-year position in July

2019, is David Hurley.
The main role of the Governor-General is to:
Grant royal assent (give final approval), on behalf of the Crown, for a
bill (proposed law) to become an Act of Parliament (law).
Perform ceremonial duties.
The Governor-General may also ‘dissolve’ or end, the term of
parliament and call a federal election if both houses fail to agree over
passing of a significant law.This power is used rarely and only in
extreme circumstances.
TOPIC 6.3 QUESTIONS
1. •In your own words, define the term Commonwealth Parliament
system, explain the role of :
a. Senate
b. House of representatives
c. The Crown
TOPIC 7.1
LAW MAKING POWERS
SECTION 51
Section 51 of the Australian Constitution outlines the specific powers
granted to the federal parliament (Commonwealth Parliament) of
Australia. It delineates the areas in which the federal government has
legislative authority, while also providing for the concurrent powers of the
states.
Section 51 enumerates several subsections, each of which grants the
federal parliament jurisdiction over different subject matters.

"The Parliament shall, subject to this Constitution, have power to make laws
for the peace, order, and good government of the Commonwealth with respect
to:

(i) trade and commerce with other countries, and among the States;
(ii) taxation; but so as not to discriminate between States or parts of States;
(ix) quarantine;
(xi) census and statistics;
(xii) currency, coinage, and legal tender;
(xv) weights and measures;
(xvi) bills of exchange and promissory notes;
(xvii) bankruptcy and insolvency;
(xix) naturalization and aliens;
(xxi) marriage;
(xxii) divorce and matrimonial causes; and in relation thereto, parental rights,
and the custody and guardianship of infants;
TOPIC 7.1
LAW MAKING POWERS
LAW MAKING POWERS OF THE COMMONWEALTH PARLIAMENT

The Commonwealth Parliament can only make laws in the areas

specifically stated in the Constitution as belonging to the Commonwealth
Parliament.
These are referred to as specific areas of law-making power, or specific
powers.
They include the power to make laws on:
Marriage and divorce
Currency (for example, the goods and services tax)
Social welfare benefits (for example, the aged pension and
unemployment benefits)
Trade and commerce (with other countries and between the states)
Defence (naval and military forces)
Customs and excise (taxes on the production or export of goods)

LAW MAKING POWERS OF STATE PARLIAMENT

The state parliaments have the sole power to make laws in these
areas:
Adoption, surrogacy or IVF technology (which did not exist in 1901)
Childcare and education
Public transport
Water and electricity supply
TOPIC 7.1 QUESTIONS
1. Identify three areas in which the Commonwealth Parliament can
make laws that are listed in Section 51 of the Constitution, that are
not already listed.

2. Discuss the principles underlying the concurrent powers of the

federal and state governments as outlined in Section 51 of the
Australian Constitution. Provide examples of areas where both
levels of government may legislate concurrently and explain how
conflicts between federal and state laws are resolved.

3. Explain the significance of Section 51 in the distribution of

legislative powers between the federal government and the states
in Australia.

4. Imagine a scenario where a state government passes a law

regulating the fishing industry within its borders. However, the
federal government also passes legislation concerning fisheries in
Australian waters beyond territorial limits. Analyze how the
principles of Section 51 would apply in resolving any potential
conflicts between these laws.
TOPIC 7.2
TYPES OF SPECIFIC POWERS
TYPES OF SPECIFIC POWERS
The specific powers of the Commonwealth Parliament that are outlined in
the Constitution can be divided into three types, Exclusive powers and
Concurrent powers.

Exclusive Powers: These are powers explicitly granted to the federal

parliament, to the exclusion of the states. Examples include the power
to regulate trade and commerce with other countries and among the
states (s. 51(i)), the power to make laws on taxation (s. 51(ii)), and the
power to legislate on defense matters (s. 51(vi)).

Concurrent Powers: These are powers shared by both the federal

parliament and the state parliaments. VCE students might study areas
where both levels of government can legislate, such as in relation to
marriage (s. 51(xx)), divorce (s. 51(xxi)), and bankruptcy (s. 51(xvii)).

Residual Powers: Section 51 also reserves certain powers to the states.

These residual powers allow states to legislate on matters not assigned to
the federal government. This includes areas such as education, health,
and transport,
TOPIC 7.2
TYPES OF SPECIFIC POWERS
COMMONWEALTH VS TASMANIA 1983

The case "Commonwealth v Tasmania" (1983), commonly known as the

"Tasmanian Dams Case," was a landmark legal dispute heard by the High
Court of Australia. It concerned the proposed construction of the
Gordon-below-Franklin Dam in Tasmania, which would have flooded large
parts of the Franklin River and surrounding wilderness areas, including
portions of the Tasmanian Wilderness World Heritage Area.

The Commonwealth government, led by Prime Minister Bob Hawke,

sought to stop the construction of the dam on environmental grounds.
To do so, the Commonwealth Parliament passed the World Heritage
Properties Conservation Act 1983, which aimed to prevent the Tasmanian
government from proceeding with the dam project.

The Tasmanian government, led by Premier Robin Gray, challenged the

validity of the Commonwealth's legislation, arguing that it exceeded the
Commonwealth's constitutional powers and encroached upon
Tasmania's rights as a state.

The key legal issue in the case was whether the Commonwealth
Parliament had the constitutional authority to enact laws for the
protection of the Tasmanian wilderness under its powers over external
affairs (s. 51(xxix)) and its power to make laws with respect to
"unforeseen matters" (the "Corporations Power" under s. 51(xx)).
TOPIC 7.2
TYPES OF SPECIFIC POWERS
COMMONWEALTH VS TASMANIA 1983

In a landmark decision, the High Court ruled in favor of the

Commonwealth, holding that the World Heritage Properties Conservation
Act 1983 was constitutionally valid. The court interpreted the external
affairs power broadly, finding that protecting world heritage sites fell
within the Commonwealth's authority to manage Australia's international
obligations. Additionally, the court held that the potential environmental
impact of the dam constituted an "unforeseen matter" under the
Corporations Power, further justifying the Commonwealth's legislative
intervention.

The decision had significant implications for federalism in Australia,

establishing a precedent for the Commonwealth's ability to intervene in
matters traditionally within the jurisdiction of the states, particularly in
cases involving national and international environmental concerns. The
Tasmanian Dams Case remains one of the most important environmental
law decisions in Australian legal history.
TOPIC 7.2 QUESTIONS
1. In your own words, define ‘exclusive powers’.
2. Distinguish between specific and residual powers. Remember,
when you distinguish between two things you must talk about
how they are different.
3. List three examples of each type of power.
4. Propose (put forward) one reason why some specific areas of
law-making power might have been designated as being
exclusive powers of the Commonwealth Parliament. Provide
two examples to support your response.
5. Explain the significance of the High Court's decision in
"Commonwealth v Tasmania" (1983) in the context of Australian
federalism. In your response, discuss the constitutional
principles invoked by the High Court and their implications for
the distribution of legislative powers between the
Commonwealth and the states. (10 MARKS)
TOPIC 7.3
SECTION 109
SECTION 109
Section 109 of the Constitution provides: When a law of a State is
inconsistent with a law of the Commonwealth, the latter shall
prevail, and the former shall, to the extent of the inconsistency, be
invalid.

Section 109 the Australian Constitution states that if the federal

Parliament and a state parliament pass conflicting laws on the same
subject, then the federal law overrides the state law, or the part of the
state law that is inconsistent with it.

Section 109 of the Australian Constitution is a cornerstone of the

country's legal framework, particularly in the context of federalism. It
establishes a clear hierarchy of laws by stipulating that in cases of
inconsistency between federal and state laws, federal law prevails,
rendering state law invalid to the extent of the inconsistency. This
provision reinforces the supremacy of federal law over state law in
areas where the Commonwealth Parliament has legislative authority,
ensuring uniformity and consistency in the application of laws across
Australia. By protecting the constitutional balance and preventing state
laws from undermining federal laws, Section 109 upholds the integrity
of Australia's federal system of government. Its interpretation and
application by the judiciary, particularly the High Court of Australia,
provide legal certainty and predictability in the legal system.
Additionally, Section 109 serves as a check on the legislative powers of
both the federal and state governments, preserving the system of
checks and balances inherent in Australia's federal structure.
TOPIC 7.3 QUESTIONS
1. Define Section 109 of the Australian Constitution and explain its
significance in the context of federalism. (5 marks)
2. Describe the role of Section 109 in resolving conflicts between
federal and state laws. Provide an example to illustrate your
answer. (6 marks)
3. How does Section 109 reinforce the supremacy of federal law
over state law? (4 marks)
4. Discuss the implications of Section 109 for the distribution of
legislative powers between the Commonwealth and the states.
(7 marks)
5. Explain how the High Court's interpretation of Section 109
influences the relationship between federal and state laws in
Australia. (5 marks)
TOPIC 8.1
AUSTRALIA’S INTERNATIONAL OBLIGATIONS
AUSTRALIA'S PART IN THE UNITED NATIONS

Climate change a change in global or regional climate patterns; in

particular, a change attributed largely to the increased levels of
atmospheric carbon dioxide produced by the use of fossil fuels.
Human rights basic freedoms or standards that promote and uphold
the dignity of all people and are guaranteed by a moral sense of duty
or by the law
Discriminated when a person or group is treated unfavourably
because of personal characteristics such as their age, race, disability,
physical features or political beliefs
Living standards the level of wealth, material goods, comfort and life
necessities available to people living in a geographical area.
Humanitarian crisis events that cause, or threaten to cause,
significant harm and suffering to a community or nation; e.g. armed
conflicts, global pandemics and natural disasters.
Alliance an agreement between one or more nations or organisations
to work together to achieve a common or mutual interest.
Commonwealth of Nations a group of 54 nations that are, or used to
be, ruled or governed by the United Kingdom; the head of the
Commonwealth is the Queen or King of England
TOPIC 8.1
AUSTRALIA’S INTERNATIONAL OBLIGATIONS
MAIN PURPOSE OF THE UNITED NATIONS

Maintaining international peace and security in the world

Creating and developing friendship between nations
Helping nations work together to solve major problems (for
example, global poverty and disease, income inequality and
climate change) and promote human rights (for example, the right
to life, the right to freedom of religion, and the right to not be
discriminated against on the basis of gender, race, religion, sexual
orientation or disability)
Providing a central meeting place where nations can come
together to discuss and achieve the aims mentioned above.

SUSTAINABLE DEVELOPMENT GOALS

In 2015, each of the UN Member States, including Australia, promised

to take action to end global poverty, protect the global environment
and improve the lives of all citizens throughout the world. To do so,
the Member States, agreed to adopt or take action to promote the
achievement of 17 Sustainable Development Goals (SDGs) by 2030
(see Source 2).

Sustainable Development Goals (SDGs) a set of 17 goals developed by

the UN in 2015 that are designed to end poverty, protect the Earth
from unsustainable development, and improve the wellbeing of all
people by 2030
TOPIC 8.1
AUSTRALIA’S INTERNATIONAL OBLIGATIONS
AUSTRALIA'S ROLE
Australia was one of the first 51 countries to become a member of the
UN when it started in 1945.

Due to our relatively small population size, we are not considered a

powerful nation by world standards; however, we do play a major role
in the UN.

For example, Australia is the twelfth largest financial contributor to the

UN and plays an important role in the UN’s peacekeeping activities.

In addition, membership of the UN allows Australia to have a voice in

international affairs and play a role in promoting stability and human
rights throughout the world.

UN membership also helps Australia protect its own economic and

security interests.
TOPIC 8.1 QUESTIONS
1. When was the United Nations established?
2. Where are the central headquarters of the United Nations
located?
3. What is the purpose of the United Nations?
4. What is UNICEF?
5. If your country was gripped with war, would you be glad that an
organisation such as the United Nations exists? Give reasons for
your answer.
 TOPIC 8.2
AUSTRALIA’S INTERNATIONAL ROLE AND
RESPONSIBILITIES
Maintaining global peace and security

Australia works with a number of countries and organisations to help

promote peace and security, both within our Asian–Pacific Region and
throughout the world.
For example, over the years the Australian Government has entered
into a variety of military and defence alliances with other countries to
ensure the security of our nation. These includes alliances with the
United States, New Zealand, Indonesia, Japan, Malaysia and Papua
New Guinea.
Australia is also a member of a number of organisations that work to
maintain global security, including the UN and the Commonwealth of
Nations.
Since 1947, Australia has been involved in over 60 UN peacekeeping
operations. This is achieved by:

Maintaining peace and security in a region

Protecting civilians (that is, those who are not on active duty with
the military, navy, police or firefighting organisations)
Overseeing elections to ensure they are free and fair
Disarming those who were involved in fighting; for example,
controlling and disposing of weapons
Protecting and promoting human rights
Restoring the rule of law to a region, so that legal institutions –
including the government, police, courts and prisons – are
strengthened and accountable for their actions.
TOPIC 8.2
AUSTRALIA’S INTERNATIONAL ROLE AND
RESPONSIBILITIES
TOPIC 8.2
AUSTRALIA’S INTERNATIONAL ROLE AND
RESPONSIBILITIES

Protecting the environment

Australia has been involved in many international agreements that

serve to protect the environment.

Australia has a national and international responsibility to reduce

its environmentally harmful greenhouse gas emissions to avert the
effects of climate change.

In 2016 Australia became a party to the Paris Agreement, which is

an agreement within the UN Framework Convention on Climate
Change, whose members commit to reducing greenhouse gas
emissions.

The objective of the agreement is to limit ‘the increase in the global

average temperature to well below 2°C above [pre-Industrial
Revolution] levels’.

Australia committed to reducing greenhouse gas emissions by

between 26 and 28 per cent below 2005 levels by 2030.

Improving global living standards and responding to

humanitarian crises

Australia has a humanitarian strategy that outlines how we

respond to international humanitarian crises and, as a member of
the UN, is committed to assisting the achievement of the 17 UN
Sustainable Development Goals by 2030.
TOPIC 8.2
AUSTRALIA’S INTERNATIONAL ROLE AND
RESPONSIBILITIES

One way Australia can help other nations improve their living
standards is by providing foreign aid.

Foreign aid may be given to help alleviate poverty and assist a

community to develop a better standard of living; for example, to
help build schools, roads or water infrastructure.
It can also be used to provide food aid and medical care.

Foreign aid may be offered by one country to another that is

experiencing a humanitarian crisis which threatens the health and
safety of its community.

One way Australia can help other nations improve their living
standards is by providing foreign aid.

Foreign aid may be given to help alleviate poverty and assist a

community to develop a better standard of living; for example, to
help build schools, roads or water infrastructure.

It can also be used to provide food aid and medical care.

Foreign aid may be offered by one country to another that is

experiencing a humanitarian crisis which threatens the health and
safety of its community.
TOPIC 8.2 QUESTIONS
10 Years of Independence in South Sudan: Stories from MSF's
South Sudanese Staff:
https://www.youtube.com/watch?v=PKlLO0jobUg&t=1s&ab_channel=DoctorsWithoutBorders%2FMSF-USA

1. Imagine you are involved in a peacekeeping operation.

Determine (decide) what dangers you might face as you carry
out your work.
2. Explain why South Sudan requires help from the international
community.
3. Determine why it is important that all countries agree on
greenhouse gas emissions reduction targets. What problems
miught arise if no agreeements are reached?
4. Explain why Australia might hold a ‘moral’ necessity to support
and provide foreign aid?
 TOPIC 8.3
AUSTRALIA’S INTERNATIONAL LEGAL
OBLIGATIONS
TREATY
A treaty is a formal, legally binding written agreement between actors in
international law. It is usually made by and between sovereign states,but can
include international organizations, individuals, business entities, and other legal
persons.

A treaty may also be known as an international agreement, protocol, covenant,

convention, pact, or exchange of letters, among other terms. However, only
documents that are legally binding on the parties are considered treaties under
international law.

BILATERAL TREATY

A bilateral treaty (also called a bipartite treaty) is a treaty strictly between two
state entities. It is an agreement made by negotiations between two parties,
established in writing and signed by representatives of the parties. Treaties can
span in substance and complexity, regarding a wide variety of matters, such as
territorial boundaries, trade and commerce, political alliances, and more. The
agreement is usually then ratified by the lawmaking authority of each party or
organization.

MULTILATERAL TREATY

A multilateral treaty is a treaty to which two or more sovereign states are

parties. Each party owes the same obligations to all other parties, except to the
extent that they have stated reservations. Examples of multilateral treaties
include the Convention Relating to the Status of Refugees, the United Nations
Convention on the Law of the Sea, the Geneva Conventions, and the Rome
Statute of the International Criminal Court.
TOPIC 8.3
AUSTRALIA’S INTERNATIONAL LEGAL
OBLIGATIONS
THE IMPACT OF TREATIES ON AUSTRALIAN LAW
Parliaments plays a role in examining treaties that Australia enters into, apart
from those considered urgent or sensitive. It also plays a role in passing
legislation, if it is needed, to ensure the provision of the treaty becomes law in
Australia. It is not always necessary to pass new laws to ensure we comply
with our treaty obligations.Existing Commonwealth or state/territory
legislation may be sufficient to implement the provision of a treaty.
TOPIC 8.3
AUSTRALIA’S INTERNATIONAL LEGAL
OBLIGATIONS
THE INFLUENCE OF INTERNATIONAL LEGAL
OBLIGATIONS ON POLICY.

International legal obligations can shape domestic policy in Australia. Policy

making involves the government taking action in a certain area to achieve the
desired outcome.

Protecting the ozone layer is one example where Australia worked closely
with other countries and implemented policies at home to reduce ozone-
depleting chemicals, such as chlorofluorocarbons, in the atmosphere.

The ozone layer serves to protect us against excessive ultraviolet radiation

from the sun that can cause health problems such as skin cancer. Australia
has surpassed all of its legal obligations under the Montreal Protocol on
Substances that Deplete the Ozone Layer.

Ozone depletion still continues but the Montreal Protocol was successful in
controlling the global production and consumption of ozone-depleting
substances.

The reduction of greenhouse gas emissions is another area that requires a

sustained effort from all countries in order to make a difference.

As mentioned, Australia is a full member of the Kyoto Protocol and did

introduce a carbon tax aimed at reducing greenhouse gas emissions, but
this has subsequently been repealed. Greenhouse gas emission reduction
targets that other countries commit to will most likely shape future policies
and laws in Australia.
TOPIC 8.3
AUSTRALIA’S INTERNATIONAL LEGAL
OBLIGATIONS
Failure to live up to our international obligations can result in international
pressure to change policy.

The UN plays a role in monitoring how Australia is performing in relation to

its international legal obligations. The 'Australia and the United Nations:
Report Card' recently gave Australia poort score in the following areas

Climate change: Australia scored a D+ in this area. Australia is said to rely

too heavily on fossil fuels and needs to set stronger targets for reducing
the effects of climate change in the future.

Refugee and asylum seekers: Australia was given F in this area. It was
noted that there is increased hostility towards asylum seekers and it was
questioned whether the current policy is fulfilling our international legal
obligations.
TOPIC 8.3 QUESTIONS
1. Give two examples of an international treaty Australia is a part
to and explain the main purpose of each treaty.
2. Explain the difference between a bilateral and multilateral
treaty.
3. Determine why the power to enter into treaties belongs to the
Australian Government rather than the state or territory
governments.

Have the students pick one of the international treaties and

conduct further research to answer these questions:
1 What is the name of the treaty?
2 When did Australia enter into this treaty?
3 Why did Australia enter into this treaty?