PART 1 – PRINCIPLES AND PRACTICES OF AUSTRALIA’S WESTMINSTER PARLIAMENTARY SYSTEM OF GOVERNMENT (15% OF COURSE CONTENT – 22.5 HOURS)
The focus of this Unit is a consideration of the fundamental elements of liberal democracy, including legitimacy, separation of powers and institutional protection of human rights. The Unit considers the practical manifestation of liberal democratic principles in Australia’s Westminster parliamentary system of government.
1.1 AN INTRODUCTION TO THE PRINCIPLES OF LIBERAL DEMOCRACY
Learners will study:
An introduction to the principles of a liberal democracy.
- Legitimate Authority
- illustrative examples: free, frequent and fair elections. A competitive and open political process by which political office holders are selected. Government authority is mandated by popular vote, universal suffrage. The concept of social contract.
- Separation of Powers
- illustrative examples: separation of Legislative, Executive and Judicial branches of government, a suspicion of concentrated forms of power is reflected in the separation of powers. Concept of ‘checks and balances.’ The judiciary is independent of government interference and control.
- Rule of Law (Constitutionalism)
- illustrative examples: political and legislative power is limited and prescribed by a constitution which entrenches separation of powers. Restraints on power are documented, accepted and mechanisms for legal and political dispute resolution are transparent and applied equally to all. Government authority is exercised by written, publicly disclosed laws adopted, enforced and subject to reform in accordance with established, predictable and transparent procedure.
- Human Rights
- illustrative examples: the state is responsible for the adherence to and protection of the rights, privileges and immunities of individuals which are both civil and political in nature and which exist independent of any particular form of government or the state.
- Procedural Fairness
- illustrative examples: individuals are treated equally and fairly in the resolution of disputes, with equitable access to judicial resources in the resolution of such disputes. There is predictability and accepted, transparent and institutionalised process in the manner in which individuals are held accountable for their actions.
- Pluralism
- illustrative examples: recognition and both formal and informal affirmation of diversity within a state. Diversity in lifestyles, affiliations, associations, religious, political and personal beliefs are formally recognised and protected by the state. Institutional protection of civil liberties and civil society.
1.2 AUSTRALIA’S WESTMINSTER PARLIAMENTARY SYSTEM OF GOVERNMENT
Learners will study:
- the main features of the Westminster system adopted by Australia:
- Constitutional Monarchy
- constitutional conventions including the head of Government, the Prime Minister, who leads a Cabinet which is responsible to the lower House
- Separation of Powers and Rule of Law in Australia
- representative and responsible government
- bicameral parliament, with the House of Representatives being the ‘Peoples House’ and the Senate being the ‘States House’ and a ‘House of Review’.
PART 2 – AUSTRALIAN FEDERAL CONSTITUTIONAL GOVERNMENT (15% OF COURSE CONTENT – 22.5 HOURS)
The focus of this Unit is the federal constitutional arrangements which provide for the division of powers in Australia between the Australian government and the state and territory governments. The Unit provides learners with an overview of the ways in which the division of power between the national and state and territory governments has changed over time, and considers the status of Aboriginal and Torres Strait Islander peoples in the Constitution of the Commonwealth of Australia.
2.1 THE MAIN FEATURES OF AUSTRALIA’S FEDERAL SYSTEM
Learners will study:
- shared sovereignty of law making powers by different levels of government
- the Constitution to divide the lawmaking powers, between the State Parliaments and the Commonwealth Parliament
- High Court to interpret the Constitution.
2.2 THE ALTERATION TO THE DIVISON OF POWER OVER TIME AND THE CONSEQUENCES FOR FEDERALISM IN AUSTRALIA
Learners will study:
- interpretation of the Constitution (S51(xxix) in particular) by the High Court – illustrative example – Tasmania Dams Case 1983
- High Court judgements in favour of the Commonwealth. Illustrative example: First Uniform Tax Case 1942
- referral of power (S51(xxxvii))
- referendums – 1967 referendum as an example of a successful one and 1999 as an unsuccessful one.
2.3 ABORIGINAL AND TORRES STRAIT ISLANDER CONSTITUTIONAL RECOGNITION
Learners will study:
- the status of Aboriginal and Torres Strait Islander Peoples in the Constitution of the Commonwealth of Australia, and possible constitutional reforms to their status.
PART 3 – AUSTRALIAN AND INTERNATIONAL LAW (30% OF COURSE CONTENT – 45 HOURS)
The focus of this Unit is identifying and assessing the sources and basis of law both in Australia and in an international context. It involves a consideration of Aboriginal and Torres Strait Islander customary law, Australian statute law, law made by parliaments, Australian common law, law made by judges in court rooms, as well as the increasing influence of International law as a source of law. The Unit additionally considers the nature of, and participants in, Australian law reform.
3.1 CUSTOMARY LAW
Learners will study:
- the characteristics of Aboriginal and Torres Strait Islander customary laws
- the impact of the European legal concept of terra nullius on the legal status of Aboriginal and Torres Strait Islander peoples and their customary laws.
3.2 AUSTRALIAN STATUTE LAW
Learners will study:
- the basis of Statute Law:
- the processes of initiating, drafting and passing a bill through parliament
- the different roles of the parliament and cabinet in law making
- the advantages and limitations of Statute Law.
3.3 AUSTRALIAN COMMON LAW
Learners will study:
- the hierarchies and jurisdictions of the Tasmanian and Commonwealth court systems
- the Doctrine of Precedent
- the role judges have in lawmaking (case law and interpretation of legislation)
- the advantages and limitations of judges in the law making process.
3.4 AUSTRALIAN LAW REFORM
Learners will study:
- the role the following groups play in influencing change in Australian law. Learners must study two from the following list:
- Law Reform Bodies (ALRC, TLRI)
- Royal Commissions and Commissions of Inquiry
- Parliamentary Committees (Standing, special purpose, joint committees)
- statutory authorities and commissions (Human Rights Commission, Productivity Commission)
- how individuals through the Court system influence change in law (Mabo Case 1992 overturning of terra nullius and recognition of Native Title)
- how Interest/Lobby/Pressure Groups interact with society and law making institutions to influence changes in the law.
3.5 INTERNATIONAL LAW
In studying this sub-part learners will:
Select one of the following themes drawing upon and applying their knowledge and understanding of International law:
- protection of the atmosphere and climate change
- Human Rights
- migration and refugees
- international conflict (War and War on Terrorism.)
Learners, in relation to the selected theme, will:
- correctly identify the differences between international law and Australian law
- correctly identify why states obey international law, and how international law is enforced.
PART 4 – DISPUTE RESOLUTION: CIVIL AND CRIMINAL (30% OF COURSE CONTENT – 45 HOURS)
The focus of this Unit is dispute resolution in Australia. It involves both formal adversarial trials as well as alternative dispute resolution processes. The Unit examines the nature of crime and criminal procedure including sentencing options available to a court, as well as safeguards in the criminal justice system to protect the interests of victims, accused and the community.
4.1 ADVERSARY TRIAL
Learners will study:
- the purpose of the adversary (or adversarial) system
- the essential differences between a criminal and civil legal action
- the features of the adversarial trial process:
- contest
- impartial adjudicator
- party control
- strict rules of evidence and procedure
- a single event
- role of the jury
- the advantages and limitations of the adversary system.
4.2 ALTERNATIVE DISPUTE RESOLUTION (ADR)
Learners will study:
- the different ADR processes. Learners must study two from the following list:
- Negotiation and Settlement
- Mediation
- Tribunals
- Conciliation and Arbitration
- Restorative Justice
- ombudsman.
4.3 CRIME AND CRIMINAL PROCEDURE
Learners will study:
- the elements of a crime:
- mens rea
- actus reus
- strict liability/absolute liability.
The differences between a summary vs an indictable offence.
4.4 SAFEGUARDS AND RIGHTS OF THE ACCUSED IN THE CRIMINAL JUSTICE SYSTEM
Learners will study:
- the safeguards built into the criminal justice system to protect the accused:
- police procedures
- bail
- preliminary proceedings
- onus and standard of proof
- presumption of innocence
- jury challenges and appeals
- how the rights of the accused, the victim and of the community are protected in the criminal justice system.
4.5 SENTENCING AND AIMS OF PUNISHMENT
Learners will study:
- the laws regulate punishment and sentencing in Tasmania
- the purposes and aims of punishment / sentencing
- the general principles and factors considered in sentencing (offence and offender)
- the sentencing options (including proposed reforms, for example, diversionary processes and restorative justice) available to Tasmanian judges and magistrates
- the extent to which Tasmanian sentencing options fulfil the aims of punishment.