Law-making: parliament and subordinate authorities

Transcription

1 CHAPTER 2 Law-making: parliament and subordinate authorities A legal system includes groups or organisations that are recognised by the community as having the authority to make laws. After reading the chapter and undertaking the activities you should be able to demonstrate the following key knowledge: the role and characteristics of parliament in law-making the role of subordinate authorities in the law-making process. Law-making by parliament Parliament Crown Courts and legislation Constitution Federation Bicameral Upper House Interpreting statutes Common law State Parliament Commonwealth Parliament Lower House Legislative process Delegated legislation Statutory authorities Government department Executive council Local government

2 Chapter 2 Law-making: parliament and subordinate authorities 25 Key terms Acts bicameral common law constitution Crown delegated legislation division of power federation government House of Representatives legislation Legislative Assembly Legislative Council legislative process parliamentary sovereignty preferential system of voting proportional system of voting royal assent Senate statutes Westminster system Laws passed by parliament A parliament consisting of two houses and the Crown Law developed by the courts through the application of precedent A document that sets out the structure and powers of the parliament The authority of the Queen in parliament and the legal system Those laws made by bodies or authorities that are subordinate to parliament The ways that power is shared between the Commonwealth and state parliament. These powers are specific, exclusive, concurrent and residual The joining together of states to form one nation The party (or parties in coalition) that holds a majority of seats in the lower house The lower House of the Commonwealth Parliament Laws made by parliament The lower House of the Victorian Parliament The upper House of the Victorian Parliament The process used by parliament to make laws The ultimate law-making body which can make, change or repeal legislation as well as override common law The voting system used in the lower house whereby voters are required to rank all candidates in order of preference using 1 for most preferred, 2 for the next preferred, and so on, until a candidate receives more than half the formal votes cast The voting system used in the upper house whereby candidates are selected according to a percentage of the vote Final approval by the Crown to an Act of Parliament The upper House of the Commonwealth Parliament Laws made by parliament The British system of parliament

3 26 The Legal Maze The sources of law There are two main sources of law: statute law and common law. People tend to think of the law as law made by parliament. However, there are two main sources of law in Australia: laws made by parliaments known as statute law and laws made by judges known as common law. The role of the courts and common law is discussed in chapter 8. Sources of law and their terminology Parliament Delegated authorities Courts Traditional/ Indigenous Legislation Statute law Bill of Parliament (proposed law) Act of Parliament (actual law) Delegated legislation Local laws By-laws Regulations Common law Judge-made law Case law Precedent Indigenous or cultural law Customary law Payback justice Native title (established by the Mabo and Wik cases) Parliament Parliament makes Acts, statutes or legislation. Federation was the joining together of states to form one nation with state and Commonwealth parliaments. There are nine parliaments in Australia: a Commonwealth Parliament, six state parliaments and two territory parliaments (those of the Northern Territory and the Australian Capital Territory). These parliaments pass written laws in the form of Acts, legislation or statutes. All parliaments have Parliamentary sovereignty; that is, they have ultimate law-making authority. They can make, change or repeal (cancel) previous legislation as well as override common law. For example, the Victorian Parliament is able to override a case of the High Court of Australia. Federation Australia has a federal system of government. A federation is a joining together of states for a common purpose. The power to make laws is shared between a central parliament and state and territory parliaments. The central parliament is the Parliament of Australia, also known as the Commonwealth or Federal Parliament. To understand how the federal system of government works in Australia we need to know a little about part of the history of Australia. In the 1800s, Australia consisted of a number of British colonies. These colonies roughly corresponded to the present-day states. Between 1850 and 1890, Britain gave these colonies the power to be self-governing. This power was set out in constitutions, which established a parliament in each of the colonies. The colonies realised that some areas of power would be better handled if they worked together as a federation. It was felt that defence, currency, immigration and trading relationships with other countries could be better dealt with by a central authority than by each colony acting alone. Representatives of the colonies met over a number of years to establish a central government (federation). After much negotiation, they drafted a constitution outlining the authority of the new central government and the structure of a federal parliament.

4 Chapter 2 Law-making: parliament and subordinate authorities 27 State and territory parliaments The Western Australian Parliament makes laws for Western Australia. The Northern Territory Legislative Assembly makes laws for the Northern Territory. The Queensland Parliament makes laws for Queensland. The New South Wales Parliament makes laws for New South Wales. The Commonwealth Parliament makes laws for Australia. The South Australian Parliament makes laws for South Australia. The Tasmanian Parliament makes laws for Tasmania. The Victorian Parliament makes laws for Victoria. The Australian Capital Territory Legislative Assembly makes laws for the Australian Capital Territory. The Constitution sets out the structure and powers of the Commonwealth. A copy of the Constitution can be found on the Parliament of Australia website The specific powers of the Commonwealth are stated in the Constitution. Exclusive powers are those specific powers in the Constitution that can only be used by the Commonwealth Parliament. The Constitution A constitution sets out the guidelines and principles of government and lays down the power and authority of the government and parliament. The formal title is the Commonwealth of Australia Constitution Act 1900 but most people refer to this Act as the Australian Constitution. The Act came into force on 1 January With the passing of the Australian Constitution, each colony became known as a state. The colonies gave some of their law-making powers to the new Commonwealth Parliament. Law-making powers The Constitution established a division of power whereby the Commonwealth Government would look after issues of a national interest, while the state governments would deal with and administer important state issues. Commonwealth and state powers fall into one of the following categories: specific, exclusive, concurrent and residual. Specific powers Under the Constitution, the power of the Commonwealth Parliament to make laws is limited to matters that are specifically mentioned (enumerated) in the Constitution. These powers are called specific powers and they can be found in Sections 51 and 52 of the Constitution. These include laws about foreign trade, taxation and defence. Exclusive powers Some of the specific powers of the Commonwealth Parliament listed in the Constitution can only be used by the Commonwealth Parliament. These powers are known as exclusive powers. These exclusive law-making powers cover laws such as printing money, defence and immigration.

5 28 The Legal Maze Some law-making powers are shared between the Commonwealth and the state parliaments. Residual powers are those powers that were never given to the Commonwealth Parliament at the time of federation and were left to the states. Concurrent powers Some powers listed in the Constitution are shared between the Commonwealth Parliament and state parliaments. These are known as concurrent powers. Both the Commonwealth Parliament and state parliaments can make laws in these matters. For example, both parliaments can make laws on taxation. However, if concurrent laws made by both a state parliament and the Commonwealth Parliament are inconsistent, the federal (Commonwealth) law prevails. Residual powers After federation each state retained its own constitution and some powers to make laws. Any power not specifically given to the Commonwealth Parliament remained a state law-making power. Such powers are called the residual powers of the states. They include large areas of law-making, such as criminal and civil law, health and education. Commonwealth Parliament Australian Constitution Specifically lists powers Concurrent powers Exclusive powers State Constitution Residual powers The structure of parliament A bicameral parliament consists of two Houses and the Crown. The structure of parliaments in Australia is based on Britain s Westminster system. Both the Commonwealth Parliament and the Victorian Parliament are bicameral parliaments. This means that they consist of the Crown and two Houses: a lower House and an upper House. Bicameral parliament Crown Upper House Lower House

6 Chapter 2 Law-making: parliament and subordinate authorities 29 Are all parliaments in Australia bicameral? Most parliaments in Australia are bicameral. A parliament with only one House is called a unicameral parliament. Queensland has a unicameral parliament. The parliaments of the Northern Territory and the Australian Capital Territory are also unicameral. The lower House of our Commonwealth Parliament is known as the House of Representatives. The upper House is known as the Senate. In the Victorian Parliament the lower House is known as the Legislative Assembly. The upper House is known as the Legislative Council. Members of parliament are elected representatives of the people. In a federal election, all Australians over 18 years of age vote for representatives of both houses of parliament. In a state election, all people in the state who are over 18 vote for representatives in both houses of the state parliament. For more information about the Governor- General go to For more information about the Commonwealth Parliament go to The House of Representatives is the lower House of the Commonwealth Parliament. The Crown As Australia has adopted the system used in England, the reigning British monarch is traditionally the head of each of our parliaments. In reality, the Queen does not take part in the processes of parliament, but is represented by the Governor-General (in the Commonwealth Parliament) and by a governor (in the state parliaments). The role of the Governor-General or the Governor is limited and includes giving royal assent or final approval to the laws made by parliament. Commonwealth Parliament House of Representatives The House of Representatives (lower house) consists of 150 members. Each member represents a region known as an electorate. Each electorate contains approximately the same number of people. Representatives are elected for three years and use the preferential system of voting. The House of Representatives is said to represent the interests of the majority of Australians. Commonwealth Parliament Governor-General (represents the Crown) House of Representatives (150 members representing electorates of about the same population) Senate (States have equal representation)

7 30 The Legal Maze The Senate is the upper House of the Commonwealth Parliament. The Senate The Senate (upper House) is formed differently from the House of Representatives. Senate elections are designed to ensure that all states and territories have equal representation. In the House of Representatives, states and territories with larger populations will have more representatives than those with smaller populations. For example, there are only five electorates in Tasmania while there are 37 electorates in Victoria. To make sure that the interests of all states and territories are represented, the people in each state vote for 12 senators to represent their state and the people in each territory vote for two senators to represent their territory. There are 76 senators 12 for each state and two each for the Australian Capital Territory and the Northern Territory. Senators are elected for six years and use the proportional system of voting. Every three years half the senators in the Senate stand for election. The House of Representatives The Senate

8 Chapter 2 Law-making: parliament and subordinate authorities 31 For more information about the Victorian Parliament go to gov.au. The Legislative Council is the upper House of the Victorian Parliament. State parliament Elections for both houses of the Victorian Parliament are held on the last Saturday in November every four years. Legislative Assembly The Legislative Assembly (lower House) consists of 88 members. For elections for the Legislative Assembly, the state is divided into areas of approximately the same population. These areas are called electorates and each electorate is entitled to elect one representative. Representatives are elected for four years and use the preferential voting system. The Legislative Assembly is said to represent the interests of the majority of voters in Victoria. Legislative Council The Legislative Council (upper House) consists of 40 members. It is designed to make sure that the interests of rural areas (which are not as populated as city areas) have equal representation. The state is divided into eight regions, each with five members. Representatives are elected for four years and use the proportional representation system, with optional preferential voting. Victorian Parliament Governor (represents the Crown) Legislative Assembly (88 members represent areas of about the same population) Legislative Council (40 members five each representing eight regions) Government is formed by the political party, or parties in coalition, with a majority of seats in the lower House. How is government formed? It is important to note that parliament and government are not the same as one another. Parliament refers to all the members of both the upper and lower houses of parliament and the Crown. Government refers to the political party (or coalition an alliance formed between two or more parties) that has the majority of seats in the lower House. The leader of the political party that forms government will become the Prime Minister (at federal level) or the Premier (at state level). Members of parliament from the government will then be nominated as ministers. Ministers are responsible for overseeing the operation of government departments. Ministers form a group known as the Cabinet, which meets regularly to make important decisions about government policies.

9 32 The Legal Maze How government is formed Crown Upper House Lower House Government Government is made up of the members of the political party with a majority of seats in the lower House. What does parliament do? The most important function of parliament is to pass laws. The Commonwealth Parliament and the state and territory parliaments also: decide and control finances (through taxes) check the laws made by bodies to which they have delegated law-making powers provide a forum for the discussion and debate of issues investigate and report on various issues relating to government functions. The main role of parliament is to make laws. Individuals and groups may influence parliament to change the law. Making laws Parliament, at both the federal and state or territory levels, has the important task of making laws. Laws made by parliament are known as legislation, statutes or Acts. The process of making laws by parliament is called the legislative process. The idea for a new law may start either within the system of government or from the wider community. An idea for a law from within the system of government can come from a minister, a member of parliament or the Cabinet. Alternatively, a group or association, a powerful individual, public opinion, a lawreform body or comments from judges may reveal the need for a change in the law. Groups from the wider community may pressure parliament to change the law. The strategies used by these groups may include petitions, demonstrations and the use of the media. Regardless of the source of the idea for a change in the law, only members of parliament can formally propose a change in the law. In practice, most suggestions for new laws or changes to existing laws come from the government. When a law is suggested, Cabinet discusses it. If Cabinet agrees, a minister will be asked to have a draft law prepared by the parliamentary counsel.

10 Chapter 2 Law-making: parliament and subordinate authorities 33 Apply your understanding Research Commonwealth Parliament www. aph.gov.au. Victorian Parliament www. parliament.vic. gov.au. Influencing parliament Draw up a table and find out about the Commonwealth and Victorian parliaments. Complete the following information: title of the Queen s representative name of the current Queen s representative name of the upper House number of seats in the upper House role of the upper House name of the lower House name of the upper House member/s for your state/region number of seats in the lower House role of the lower House title of the head of government name of the current head of government political party in government name of your local member of parliament in the lower House name of your lower House electorate frequency of elections. Poster Careers in parliament Design a poster illustrating the role of one of the following in parliament: your local member, prime minister, Leader of the Opposition, speaker, president, Usher of the Black Rod, Serjeant-at-Arms, Whip and parliamentary counsel. Group work Influencing the law with a recent change Groups are able to influence parliament in a number of ways. Think about a recent change in the law or a proposed change in the law and identify the groups in the community that expressed opinions either for or against the change. What action did these groups take to make parliament aware of their point of view? How effective were they? Table The role of individuals and groups in changing law Draw up a table similar to the one below. In pairs identify the strategies used by individual or groups to influence parliament to change the law. For each strategy describe two advantages and two disadvantages and provide two recent examples. (Some examples are provided.) Share your responses with the class. Strategies and explanation Petition: collection of signatures requesting action on specific issue Advantages Disadvantages Recent example/s 1 2 Presented to parliament 1 Depends on the number of signatures on the petition Stop the war in Afghanistan

11 34 The Legal Maze The legislative process consists of a number of steps called readings. The legislative process is the process used to make laws. Legislative process The parliamentary counsel is a lawyer employed by the government specifically to turn ideas for new laws into Bills. This is a highly specialised job. A draft law is known as a Bill. Once a Bill has been prepared it will go through several stages of debate and discussion in both houses of parliament. Although a Bill can be introduced in either house of parliament, in most instances the discussion of a Bill will start in the lower House. Because the government is formed in the lower House it has the prime responsibility to make laws. Summary Offences and Control of Weapons Acts Amendment Bill extracts The following extracts are from the Victorian Hansard. These extracts of the parliamentary debates about the Summary Offences and Control of Weapons Acts Amendment Bill illustrate what happens in parliament at each stage of the legislative process. Part 1 Preliminary 1 Purpose The main purposes of this Act are (a) to amend the Control of Weapons Act 1990 to provide police with enhanced powers to search for weapons; and (b) to amend the Summary Offences Act 1966 (i) to increase penalties for offences relating to public drunkenness; and (ii) to create an offence of disorderly behaviour in a public place; and (iii) to permit the enforcement of those offences by service of an infringement notice; and (iv) to give the police move-on powers in relation to specified areas to prevent breaches of the peace. 2 Commencement This Act comes into operation on the day after the day on which this Act receives the Royal Assent.

12 Chapter 2 Law-making: parliament and subordinate authorities 35 Part 2 Amendments to Summary Offences Act New Division 1A inserted in Part I After Division 1 of Part I of the Summary Offences Act 1966 insert Division 1A Move-on powers 6 Direction by police to move on (1) A member of the police force may give a direction to a person or persons in a public place to leave the public place, or part of the public place, if the member suspects on reasonable grounds that (a) the person is or persons are breaching, or likely to breach, the peace; or (b) the person is or persons are endangering, or likely to endanger, the safety of any other person; or (c) the behaviour of the person or persons is likely to cause injury to a person or damage to property or is otherwise a risk to public safety. (2) A direction under this section may be given orally. (3) A direction under this section may direct the person or persons not to return to the public place or part of a public place or not to be in that public place or part for a specified period of not more than 24 hours Penalty: 5 penalty units 6 New section 17A inserted After section 17 of the Summary Offences Act 1966 insert 17A Disorderly conduct Any person who behaves in a disorderly manner in a public place is guilty of an offence and liable to a penalty not exceeding 5 penalty units. Part 3 Amendments to Control of Weapons Act New sections 10C to 10L inserted After section 10B of the Control of Weapons Act 1990 insert 10D Planned designation of search area (1) The Chief Commissioner may declare an area to be a designated area if the Chief Commissioner is satisfied that (a) either (i) more than one incident of violence or disorder has occurred in that area in the previous 12 months that involved the use of weapons; or (ii) an event is to be held in that area and incidents of violence or disorder involving the use of weapons have occurred at previous occasions of that event (wherever occurring); and (2) The area designated must not be larger than is reasonably necessary to enable members of the police force to effectively respond to the threat of violence or disorder. (3) The period of operation of a declaration under this section (a) must be not longer than is reasonably necessary to enable members of the police force to effectively respond to the threat of violence or disorder; and (b) must not exceed 12 hours Source: Victorian Hansard Legislative Assembly, 12 November 2009

13 36 The Legal Maze At the first reading the title is read out. All Bills introduced into parliament must be consistent with the charter. Refer to chapters 7 and 17 for a detailed explanation of the charter. Lower House Initiation and first reading In the lower House, a minister will ask for permission to read the Bill for the first time. If this is granted, copies of the Bill will be printed and distributed to all members of the House. In a later sitting of the House, the minister will read the title of the Bill. This is known as the first reading. There is no debate at this time, and a date for the second reading will be set. The Victorian Charter of Human Rights and Responsibilities Act 2006 requires that any member of parliament who introduces a Bill must prepare a statement of compatibility. This statement indicates whether the Bill is consistent with the human rights identified in the charter. The statement of compatibility is tabled in parliament before or at the second reading. At the second reading the purpose of the Bill is debated. Second reading The minister responsible for the Bill will present a speech outlining why the change in the law is needed. This is called the Second Reading Speech. At the second reading the broad principles or reasons for the law will be debated. The Bill will then be voted on and, if the majority of members agree, it may progress for detailed consideration. Alternatively, the Bill may progress directly to the third reading. Consideration in detail At this stage each clause is considered, together with any changes or amendments. This stage is called the Consideration in Detail in the lower House or the Committee of the Whole in the upper House. The Bill is then resubmitted to the House and voted on, and if it is passed it will go to a third reading. At the third reading any amendments will be adopted. Third reading At the third reading any changes will be formally accepted and, if a majority agree, the Bill will be passed to the upper House for debate. Upper House In the upper House the Bill goes through the same stages again. If it is passed by the upper House, it is sent to the Governor (state) or governor-general (federal) for royal assent. All the steps are repeated in the upper House. The Crown grants final approval for the Bill to become an Act. Royal assent Royal assent is the formal approval by the Crown enabling the Bill to become law. It will then be known as an Act of Parliament and will come into operation on a date set in the Act or a date set in the Government Gazette. If no date is specified, the Act will come into operation 28 days after it has been given royal assent.

14 Chapter 2 Law-making: parliament and subordinate authorities 37 How a law is made in Victoria Political parties Members of Parliament Ministerial advisers Public service Idea Political parties Discussion Party policy Individuals Pressure groups Media Public opinion Public service Necessary administrative amendments Parliamentary counsel Prepares draft Bill Government Minister Cabinet Reads submission Approves in principle Draft Bill approved by minister s Bill committee Final cabinet approval Party caucus approval Opposition Third parties and independent members Preparation of draft Bill With the approval of the Premier, parliamentary counsel usually prepares Bill A Bill may originate in either the Legislative Assembly or the Legislative Council, the exception being Bills to spend government money or raise taxes, which must be introduced in the Legislative Assembly. House of origin Initiation V Legislative Assembly: Minister/ member without notice. V Legislative Council: Minister/ member with notice. V Appropriation Bill: Minister on receipt of message from the Governor. V Private member s Bill: Government backbencher, Opposition, non-goverment or independent members. Such Bills cannot include an appropriation provision. First reading V Formal motion to bring in Bill a request of, and approval from, the house to proceed. V Listed for second reading on a future day, the exception being appropriation or supply Bills, which may be read on the same day. Second reading V A statement of the Bill s compatibility with the Charter of Human Rights and Responsibilities Act 2006 is tabled by the minister or member. V Minister s (or private member s) second reading speech; copies of the Bill, usually with explanatory notes, circulated to all members; if Bill involves expenditure from the consolidated fund, a message from the Governor is required. V Bill debated in principle that is, the general propositions of the Bill, but not the detail in the clauses, are debated. Consideration in Detail (optional may be dispensed with if the House unanimously agrees) V Bill examined in detail, clause by clause; relevant amendments may be made. In the Legislative Council this is called the Committee of the Whole stage. Third reading V Further debate, if necessary Bill passes House Second House Procedure A similar scrutiny procedure to that used in the house of origin is adopted. If a Bill passes with amendments, those amendments are transmitted by the message to the House of origin, and further messages flow between the two Houses accepting, rejecting or proposing modifications to the amendments. Each House must agree to any amendments in an identical form before a Bill can become law. Approval When a Bill has passed both Houses and any amendments have been agreed to by each, it will be prepared for Royal Assent. Clerk of Parliaments Certifies Bill Governor Royal assent Bill returned to House of origin for amendment (very rare). Enactment On day specified in the Act or If Act so provides, on day proclaimed by the Governor in the Victoria Government Gazette Law now applies

15 38 The Legal Maze Case file Reclaiming the streets of Melbourne Summary Offences and Control of Weapons Acts Amendment Bill 2009 The need for change The community has been deeply concerned by the alcohol-fuelled violence in our streets, especially in the CBD and inner city suburbs. In recent times our community has also witnessed a number of knife crimes and racially motivated attacks. According to reports, more than 400 people are arrested in Victoria each week for being drunk. In there were people arrested and taken into custody for being drunk, a rise of 23.4 per cent on the previous year. The number of assaults in statewide was The issue of violence was not only a concern for the streets of Melbourne. A Monash University study published in 2009 showed that more than 75 per cent of young Victorians have felt threatened while travelling on public transport. The survey revealed that young adults feel very unsafe when using public transport and waiting at train stations, particularly at night. An economic study had shown alcohol-related violence costs Australia $1.7 billion a year. With community concern heightened, Police and Emergency Services Minister Bob Cameron said the Summary Offences and Control of Weapons Acts Amendment Bill would make a difference and help in the drive to reclaim the streets of Melbourne from drunken late-night hooligans. Anti-social behaviour has no place on our streets and these new laws will help keep Victorian communities safe. The change in the law The new laws provide police with improved powers to search for weapons and to control public violence and disorderly conduct. The following amendments were made: increased penalties for offences relating to public drunkenness creation of an offence of disorderly behaviour in a public place permission for the enforcement of those offences by service of an infringement notice granting to the police move-on powers in relation to specified areas to prevent breaches of the peace. As well as the above, police will be able to designate an area to be searched for weapons (such as knives) if the area is known as a hotspot for violence involving weapons or they believe such an incident is about to take place there. These areas could include train stations or city blocks. In these areas, the police will be able to stop and search a person without a warrant. The areas will be designated for a 12-hour period only and, by law, must be advertised in a government gazette and newspaper seven days in advance. Police can also issue $234 on-the-spot fines (equating to two penalty units) for people who refuse to leave pubs and clubs when asked. The same applies to the offence of public drunkenness. If a person is found drunk in a public place, police are now able to place that person in safe custody. Police can also give a person a direction to move on from a public place, or part of a public place, if the police officer suspects on reasonable grounds that the person is breaching, or likely to breach, the peace. This direction can also be given if the person is endangering, or likely to endanger, the safety of any other person; or their behaviour is likely to cause injury to a person or damage to property or is otherwise a risk to public safety. Under the Act this may direct the person not to return to the public place or part

16 Chapter 2 Law-making: parliament and subordinate authorities 39 of a public place or not to be in that public place or part for a specified period of not more than 24 hours. The penalty for this offence is five penalty units. The Summary Offences and Control of Weapons Acts Amendment Bill 2009 was proclaimed on 15 December 2009 and came into operation on the day after the day on which it received royal assent. It permits police to strip-search people and search cars without warrants. They are also able to seize anything they suspect may be used as a weapon. These laws were used for the first time on 7 January 2010 when police targeted a section of Melbourne s Footscray for a three-hour period starting at 1pm. In this threehour period police found seven people carrying 12 weapons (including knives, a machete and a knuckleduster) and another was found to be in possession of drugs. Arguments for Premier John Brumby announced the government would introduce new police powers to help make the Victorian public safer. Opposition police spokesman Peter Ryan said the laws were an unfortunate necessity because street violence was a harsh reality in Victoria. The new police powers include provisions that give police the power to move people on from an area and allow them to carry out random searches. Mr Cameron, Minister for Police and Emergency Services, said that these new laws provide the police with pre-emptive tools designed to defuse situations and deter unacceptable behaviour. The increased powers were important because there had been a significant rise in weapons crime in the past year, as stated by Deputy Police Commissioner Mr Walshe. Victoria Police statistics from show that robberies involving knives increased by 9.4 per cent in the last year. This is simply unacceptable, Mr Walshe said. Arguments against The new powers have been opposed by some in the community, including Liberty Victoria president Michael Pearce. Opponents say they are an undemocratic, draconian intrusion on civil liberties and human rights, and will enable officers to strip-search children and the disabled. New laws giving Victorian police the power to conduct searches without warrants in high-crime areas will not stop armed violence in Melbourne, a western suburbs youth worker says. Les Twentyman, who has worked with youth on the streets of Melbourne s west for 30 years, said Footscray was as violent now as he had ever seen it, but he believed more education and a graphic advertising campaign would have a greater impact on crime than police searches. James Campbell, a journalist for the Herald Sun, reported that providing powers for police to randomly search persons (including children) and vehicles in public places even if police have not formed a reasonable suspicion that the person or vehicle is carrying a weapon was not compatible with the Charter of Human Rights and Responsibilities. Other strategies to curb the violence There have been a number of initiatives by the police and the community to curb alcoholfuelled violence in our streets. Herald Sun readers were involved in the campaign called Enough is Enough, which aimed to raise awareness of violence in Victoria and reduce its incidence. The City of Melbourne held the City Safety Summit in From this forum it recommended the expansion of the Safe City Cameras program, the roll-out of the first of eight late-night taxi ranks over the next four years, and a six-month trial of two CCTV cars patrolling Melbourne streets. With the support of the City of Melbourne, the Melbourne Licensees Forum and Victoria Police introduced the No Excuses campaign in It is being driven by the

17 40 The Legal Maze Association of Liquor Licensees Melbourne to make patrons aware that licensees can refuse them entry or ask them to leave if they are drunk, violent, quarrelsome, disorderly or smoking on premises. The City of Melbourne reopened a safe community area at St Pauls Cathedral in the city, which will provide refreshments to late-night revellers while they wait for a taxi or NightRider bus. The new laws come after the nationally coordinated Operation Unite police crackdown on alcohol-related violence across Australia in December It aimed to be a general deterrent to antisocial behaviour, including public drunkenness and thuggery. In Victoria an extra 800 police officers boosted the usual police numbers, with 400 in central Melbourne and 400 in Geelong, Frankston, Bendigo, Ballarat and Bairnsdale. As a result of the success of this program, Victoria Police Chief Commissioner Simon Overland believed it proved that good old law enforcement measures, such as cops on the beat, can instil a feeling of confidence and general wellbeing in the community. 2.1 Timeline of the progress of the Summary Offences and Control of Weapons Acts Amendment Bill 2009 through parliament Date Description Initiator 9 August 2009 This Bill was announced by the Premier in a media release in response to community concern about public safety. 10 November 2009 The first reading was initiated in the Legislative Assembly and passed. 12 November 2009 In accordance with the Charter of Human Rights and Responsibilities, the statement of compatibility was read in the house. 12 November 2009 The second reading speech occurred directly after this statement. The Bill was voted on and passed. Premier John Brumby Hon. Peter Batchelor (Minister for Energy and Recources) Hon. Bob Cameron (Minister for Police and Emergency Services) Hon. Bob Cameron 26 November 2009 The third reading stage passed the Bill. 26 November 2009 In the second House the Legislative Council the Bill was read for the first reading. At this point the statement of compatibility was also delivered to this house. 27 November 2009 The second reading took place and amendments to the Bill were circulated and discussed. Hon. Justin Madden (Minister for Planning) Hon. Martin Pakula (Minister for Transport) 10 December 2009 The Bill was sent to the committee stage for consideration in detail. It was discussed and passed without amendment. 10 December 2009 The third reading and vote took place and the Bill was sent for royal assent. 15 December 2009 Royal assent was given. Governor David de Kretser 15 December 2009 The Bill was also proclaimed in the Government Gazette. 16 December 2009 The Bill came into operation one day after proclamation. 7 January 2010 The designated area section of the Bill was first used: in Operation Omni, carried out in Footscray for a three-hour period.

18 Chapter 2 Law-making: parliament and subordinate authorities 41 Statement of compatibility Mr CAMERON (Minister for Police and Emergency Services) tabled following statement in accordance with Charter of Human Rights and Responsibilities Act: In my opinion, the bill, as introduced in the Legislative Assembly, is partially compatible with the human rights protected by the charter It is generally recognised that the right to freedom of movement can be subject to restrictions. For example, the International Covenant on Civil and Political Rights expressly recognises that the right may be subject to restrictions that are necessary for the protection of national security, public order, public health or morals or the rights and freedoms of others Source: Victorian Hansard, Legislative Assembly, 12 November 2009 Second reading Mr CAMERON (Minister for Police and Emergency Services) I move: That this bill be now read a second time. As part of its commitment to tackling the growing incidence of drunkenness, disorderly behaviour and violence involving the carrying and use of weapons in the Victorian community, the government is introducing the Summary Offences and Control of Weapons Acts Amendment Bill 2009 The amendments form part of a specific package of reforms aimed at addressing the problems of violence, the carrying and use of weapons and public disorder, at least some of which is alcohol related. There are strong and justifiable public interest grounds for enabling drunk and drunk and disorderly offences to be enforceable by means of infringement notices. The new infringement penalties should act as a deterrent, punish the offender and be a suitable justice system denunciation of public drunkenness behaviour Move-on powers The government has made a commitment to give police the power to direct people to move on from a certain area where there is a fear there will be a breach of the peace. The introduction of this new power will bring Victoria into line with every other jurisdiction in Australia. All jurisdictions have given their police forces the power to issue enforceable directions to individuals and groups, in public places, to move away or disperse from an area A move-on power is a pre-emptive tool designed to diffuse a situation and to ensure the peaceful enjoyment of public spaces by the citizenry Having regard to the increase in disorder and related behaviours in public places in Victoria, especially in the CBD and entertainment areas, it is now appropriate to give Victoria Police enhanced powers to ensure that members of the public can peacefully enjoy these spaces Enhanced police powers to search for weapons The government is committed to reduction and deterrence of violence involving the carrying and use of weapons in the community. Therefore, the government is of the view that it is appropriate to provide Victoria Police with additional powers to search for weapons when it is believed that violence or disorder involving prohibited weapons, controlled weapons or dangerous articles has taken place, or will take place, in an area. These new powers will enable Victoria Police to act to address the risk that violence or disorder involving weapons will occur or recur I commend the bill to the house. Source: Victorian Hansard, Legislative Assembly, 12 November 2009

19 42 The Legal Maze Apply your understanding Reclaiming the streets of Melbourne Structured questions Using the information in the case file, complete the following activities. 1 If alcohol-related violence costs Australia $1.7 billion a year, predict where this money is spent. Is this a good use of taxpayer money? Justify your view. 2 Do you believe that laws to provide police with improved powers to search for weapons and to control public violence and disorderly conduct were needed? 3 Which groups expressed concern about the need to introduce these laws? What community values do these groups represent? 4 How did the government respond to the concerns expressed by the community? Evaluate its effectiveness; in other words, discuss the pros and cons. 5 The case file includes extracts from the parliamentary debates. a Explain the purpose of these steps. b What other stages must a Bill go through before it becomes law? c Identify the right that is limited by the Act. Do you agree with the rationale presented by Mr Cameron? d How long did the parliamentary process take to change the law? e At which stage of the law-making process is the bill examined in detail? 6 The law creates a number of new offences. a Summarise the offences created by the Act. b What additional powers does the Act give police? c Do you think that these laws are necessary? Justify your view. 7 A person who behaves in a disorderly manner in a public place can now be fined. There is no clear definition of disorderly conduct. Place yourself in the role of a police officer and identify criteria that will assist you to identify disorderly conduct. 8 Would you be happy to submit to a strip-search or a vehicle search without a warrant? Justify your response. Delegated law-making Parliament can give law-making powers to other bodies. If necessary, parliament can override delegated legislation. Sometimes parliament does not have the time, expertise or local knowledge to make all the laws needed in the community. To overcome this problem, parliament delegates the power to make laws to a variety of subordinate bodies. Parliament will do this by passing an Act (known as an enabling or parent Act). The enabling Act gives another body the power to make rules and regulations. These rules and regulations are known as delegated legislation. Although parliament delegates the authority to make rules, it keeps the power to check the rules being made. Who has delegated power? The Commonwealth Parliament has delegated law-making powers to the following authorities: the Federal Executive Council federal government departments federal statutory authorities. State parliaments have delegated law-making powers to the following authorities: the State Executive Council (the Governor and a panel of ministers) state government departments state statutory authorities local municipal councils, such as the local council.

20 Chapter 2 Law-making: parliament and subordinate authorities 43 Delegated law-making Commonwealth Statutory authorities Government departments Executive council State Local government Statutory authorities Government departments Executive council Commonwealth bodies State bodies Parliament can give law-making power to statutory authorities. Parliament can give law-making power to government departments. Parliament can give law-making power to the Executive Council. Statutory authorities Statutory authorities are bodies that have been established by an Act of Parliament. They may be businesses that are government owned and controlled or regulatory bodies. Australia Post is a federal statutory authority. Australia Post performs an essential public service but is structured as a business. VicRoads is a state statutory authority. VicRoads sets regulations governing licensing and registrations of vehicles. Statutory authorities are delegated the power to make rules. Government departments Government departments are responsible for the administration of particular areas of government policy. Each department is staffed by public servants and is normally headed by a department secretary who is responsible to the minister. The parliament sets out the general policy. The department is responsible for the day-to-day administration of the policy. To put these policies into practice, government departments need to make rules and regulations. Federal government departments include the Taxation Office. State government departments include the Department of Justice and the Department of Health. Executive Council The Executive Council is made up of the Governor-General (federal) or the Governor (state) with between two and five ministers. The council meets regularly and gives approval to regulations on the recommendation of ministers. The Victorian Executive Council meets weekly.

21 44 The Legal Maze Serious Sex Offenders (Detention and Supervision) Act 2009 APPOINTMENT OF A RESIDENTIAL FACILITY. Order in Council The Governor in Council, appoints the premises known as Corella Place interim residential facility as a residential facility for the purposes of the Serious Sex Offenders (Detention and Supervision) Act 2009 (Act), pursuant to section 133(1) of the Act. Pursuant to the Act, the maximum amount of persons to reside in the residential facility is 36. Pursuant to the Act, the purpose of the residential facility is to provide for: (a) the supervision and case management of offenders on supervision orders under the Act; (b) the safe accommodation of offenders on supervision orders under the Act; (c) the protection of the community from offenders on supervision orders under the Act; and (d) the provision of support to offenders to assist them in complying with supervision orders under the Act. Source: Victoria Government Gazette, 24 December 2009 State parliaments can give law-making power to local councils. Local municipal councils In Victoria, the Local Government Act 1958 sets out the powers and functions of local councils and municipalities. Local governments are elected representatives of a local area. They have the power to make local laws to regulate affairs within their own areas. These laws cover issues relating to, for example, garbage disposal, swimming pools, libraries, parks and recreation facilities, health and preschool centres, car parking and street cleaning, as well as building construction, and the registration and control of domestic pets. Activities such as the use of skateboards or in-line skates can also be regulated by local councils. City of Stonnington councillors in August 2010

22 Chapter 2 Law-making: parliament and subordinate authorities 45 Restricted beach activities Hobsons Bay City Council [has] designated an area on Altona Beach where restricted beach activities may be conducted. Restricted beach activities include the use of certain types of watercraft which must not be taken onto or across any part of the beach that is not designated by Council. These watercraft include catamarans of less than 4 metres of overall length, windsurfers, sailboards, surf-kites, aqua scooters, motorised surfboards, canoes, dinghies and other similar vessels or vehicles designed to carry persons on water and primarily or usually propelled by motor, wind or person. Council now gives notice that the area so designated is as follows: the beach area 100 metres east of Romawi Street to the western boundary of Apex Park, Altona, of the community; as an area where restricted beach activities may be conducted. Source: Victoria Government Gazette, 19 November 2009 Delegated legislation means that laws can be made quickly and within specific areas and can ease the workload on parliament. Advantages of delegated legislation The key advantages of delegated legislation include the following. It is more efficient for bodies with expertise in a particular area to make some rules. It eases the workload of parliament. Parliament does not have time to fully debate each rule or regulation needed in our community. Changes can be implemented quickly. Delegated bodies deal with specified areas and may be more responsive to the changing needs of the community. It recognises that different geographic areas have special and particular requirements. It may allow for greater community participation in law-making. Problems with delegating law-making powers Problems with this delegation of power include the following. Other than local councils, people who make delegated legislation have not been elected. It is difficult to know who is making these laws. It is difficult for the average person to know when these laws have been changed. There may be more than one body making delegated legislation about a particular area or issue. For example, local laws relating to the same subject can differ between different councils. Take a look at the case study featuring the article Dog law a little short on logic. Why it is that one council can have one regulation on dog leads while other councils do not? Does this lead to fragmentation and confusion? Some bodies do not have to consult with the public before making rules. There may be limited opportunity for public scrutiny. Although parliament gives these bodies the power to make laws, does parliament exercise enough control over the laws made?

23 46 The Legal Maze Parliament has a number of checks on the use of delegated power. Controls on delegated legislation Parliament does establish some checks on the use of delegated legislation. Controls placed by parliament on the use of delegated legislation include the following. Regulatory impact statements. This means that before a regulation is made, a report on the economic and social costs and benefits of the regulation must be prepared. This may include community consultation. Tabling in parliament. All regulations must be tabled within a specified period of time. All members of parliament receive a copy of every regulation. Ministerial responsibility. The minister responsible for the particular area can be asked questions in parliament about the use of delegated power. Scrutiny committees. Parliamentary committees are responsible for checking regulations. Regulations are printed in the Government Gazette. In theory, this allows an opportunity for those affected by the regulation to make a comment. Further checks and balances in Victoria include the following: Sunset clause. All regulations are revoked (ended) after 10 years. Local councils are also elected bodies and councillors face their communities for election every four years. The ombudsman. This is an independent public servant who investigates complaints about administrative decisions taken by government departments, statutory authorities and local councils. (Other areas also have ombudsmen who investigate complaints related to a particular field, such as telecommunications or banking.) Court challenges. Delegated legislation can be challenged in the Supreme Court as it may be ultra vires; that is, beyond the power of the body that made the delegated legislation. The court can provide an independent ruling on the nature of this dispute. Regulatory impact statement Tabling in parliament Ministerial responsibility Controls on delegated legislation Scrutiny committees Regulations printed in Government Gazette Ten-year sunset clause Ombudsmen Court challenges

24 Chapter 2 Law-making: parliament and subordinate authorities 47 PART 1: PRELIMINARY PROVISIONS 101 Title This Local Law is the Banyule City Council General Local Law No. 1 (2005). 102 Objectives of Local Law The objectives of this Local Law are to (a) provide for the peace order and good government of the municipal district; (b) prohibit, regulate and otherwise control activities, events, practices and behaviour in places so that no detriment is caused to the amenity of the neighbourhood, nor nuisance to a person nor detrimental effect to a person s property; (c) prohibit, regulate and otherwise control obstructions to, behaviour on and activities on roads; and (d) protect Council s assets and land and to regulate their use. 103 Powers to make Local Law This Local Law is authorised by section 111 of the Local Government Act Operational date of the Local Law This Local Law operates from the 28th day of April Date this Local Law ceases operation This Local Law ceases to operate on the 27th day of April Definitions of Words used in Local Law Words Shopping Trolley meaning means a wheeled container or receptacle supplied by a retailer for enabling customers to transport goods PART 4: SHOPPING TROLLEYS 402 Impounding Shopping Trolleys Any Shopping Trolley left on a Road or other Council Land, except in an area set aside for the purpose of storage of Shopping Trolleys, may be impounded by an Authorised Officer. 403 Abandoning Shopping Trolleys A person must not abandon or leave a Shopping Trolley on any Road or other Council Land other than in an area set aside for the leaving of Shopping Trolleys. Penalty: 5 Penalty Units Source: Banyule City Council, General Local Law no. 1 (2005)

25 48 The Legal Maze Apply your understanding Shopping trolleys Structured questions Read the Banyule City Council General Local Law No. 1, then answer the following questions. 1 Where does the council obtain the power to make rules on shopping trolleys? 2 What community value does this law represent? 3 Outline reasons for providing a definitions section in delegated legislation. 4 Which objective in Section 102 covers shopping trolleys? Discuss two arguments for and against having rules on shopping trolleys. 5 If you were charged with Section 403, what are the ways you could challenge this law? Legislation and the role of courts The courts interpret the meaning of words in statutes. The main role of the courts is to resolve disputes. However, in applying legislation to a particular case, judges will need to interpret the law. When they interpret the law, they will decide what the law means in relation to a particular set of circumstances. This process is referred to as statutory interpretation. When a judge interprets the law they must decide: Ghost Gully Cemetery Act 2015 No. 001 of 2015 [Assented to 25 December 2015] The Parliament of Victoria enacts as follows: Part 1 preliminary Purpose 1. The purpose of this Act is to: (a) establish a cemetery at Ghost Gully (b) to ensure the orderly and respectful conduct of the public using the above-mentioned cemetery. Commencement 2. This Act comes into operation on a day or days to be proclaimed. Part 2 public use of cemetery (Sections 6, 7 and 8 of the Act state:) 6 No person shall drive any motor car (other than a vehicle for a funeral procession or used for the maintenance of the grounds), truck, van, tractor, bicycle or any other conveyance within the cemetery. 7 No person shall sell, offer for sale or give away any goods or advertising material within the cemetery grounds. 8 Any person who shall damage, deface or otherwise injure any grave or headstone shall be guilty of an offence. what the law means how the law applies to the particular facts in a case. In many cases it may be clear that a person s actions have been in breach of the law. For instance, a driver who has been detected driving at 140 km/h in a 60 km/h zone is clearly breaking the law. However, the meanings of words or phrases used in legislation are not always clear. When interpreting legislation, judges and magistrates are called on to determine or make clear the meaning of words or phrases in an Act. This meaning, generally, then becomes law for future cases relating to that area.

26 Chapter 2 Law-making: parliament and subordinate authorities 49 A teenager decides to visit her grandmother s grave. As a keen in-line skater, she uses her in-line skates to get to the cemetery rather than catch a bus. She enters the cemetery wearing her in-line skates and rushes past an elderly lady, nearly knocking her over. The elderly lady complains to the cemetery curator. The teenager is charged with an offence under Section 6 of the Act. Assume that the Victorian Parliament has passed the Ghost Gully Cemetery Act. A judge is then faced with this hypothetical situation. The judge would need to consider: what this section of the Act means whether it applies to this situation. Although the words any motor car (other than a vehicle for a funeral procession ), truck, van, tractor, bicycle may seem clear, the judge will need to decide whether the term any other conveyance was intended to include in-line skates. Although the words and phrases used in Section 6 may appear to be clear and specific, when they are applied to this particular case they are ambiguous. When interpreting an Act, courts follow the directions set out in Interpretations Acts. Courts can also use legal maxims to help interpret the meaning of an Act. The doctrine, or rules, of precedent will be discussed in more detail in chapter 8. Interpreting Acts of Parliament Commonwealth Parliament and the state parliaments have passed legislation setting out guidelines for judges to follow in the interpretation of Acts. Courts can also use special rules, called legal maxims, to interpret legislation. Interpretation Acts Under Interpretations Acts, the courts are to consider the purpose or object of the Act when interpreting words or phrases. To determine the purpose, judges may refer to the title of the Act and the purpose section. In addition, most Acts are now written with definition sections. When it is still not clear what parliament intends the Act to do, judges may refer to records of parliamentary debates (called Hansard), minutes from executive meetings, reports of parliamentary committee meetings, inquiries and law reform bodies. Judges may also refer to dictionaries and recognised legal texts. Legal maxims There are also some special rules (called maxims) developed by judges to help them to determine the meaning of words in an Act. For instance, the rule of ejusdem generis states that where specific words in this case any motor car (other than a vehicle for a funeral procession ), truck, van, tractor, bicycle form a general class, general words immediately following are to be given the meaning consistent with that class. So what are the general characteristics of the specific vehicles described? In this particular case, the general class of vehicles covered by the Act can be described as any form of transportation other than that used for a funeral procession. The meaning of any other conveyance therefore includes any objects that fall into this general category. In-line skates could be classed as a form of transport (in the same way as a bicycle is a form of transport). Therefore, in-line skates can be described as another form of conveyance. Interpretation and precedent When a judge, in applying the law to a particular case, interprets the meaning of the law, they will give reasons for their decision. The reasons for deciding on a particular meaning become a legal principle that can be referred to in future cases concerning the meaning of the law. These legal principles are called precedents. According to the doctrine of precedent, lower courts will follow the decisions that judges in higher courts make about the meaning of statutes. In this way, consistency in the interpretation of statutes is maintained throughout the court system.

27 50 The Legal Maze Strengths and weaknesses of parliament as a law-maker The primary role of parliament is to make laws called legislation, statutes or Acts of Parliament. Parliament sits twice per year and it devotes the majority of time to discussing, debating and making laws. The strengths of parliament as a law-maker include the following. It is an elected and representative body. Members of parliament are elected into office, for three years at the federal level and four years in Victoria. The laws they make should be representative of the views and values in the community, otherwise they may not be re-elected at the next election. It responds quickly to the demands for change in the law. Parliament has the power to respond to community demands for change by updating, whenever the need arises, existing legislation or whole areas of the law; for example, providing more powers to police to keep Melbourne s streets safe. It is able to involve the public in law-making. When deciding on areas of law reform, parliament is able to seek input from the community and gather information and recommendations from a variety of expert sources, such as formal law reform bodies. For instance, the Victorian Law Reform Commission sought feedback from individuals, businesses and organisations on how surveillance in public places should be regulated. It can delegate its power. Parliament is able to deal with more important community matters and leave the formation of delegated legislation to bodies that have the time, expertise and training; for example, allow specific local rules to be made by the local council, which understands the needs of its community. It makes laws in futuro. Parliament does not have to wait for problems to arise; it can anticipate the needs of the community, now and into the future and act in a way to resolve entire areas of law. The Legislative Assembly, Victorian Parliament Parliament also has a number of weaknesses as a law-maker. These include the following. It is influenced by lobbyists and other pressure groups. Well-organised groups that can make a lot of noise can influence government policy that represents one particular viewpoint, such as the Gay and Lesbian Lobby Group for Same Sex Marriage. It is difficult to legislate in politically sensitive areas. Parliament may find it difficult to make laws that have competing values or interest groups. Politicians may be concerned with an electoral backlash. For instance, both the federal and state parliaments have made laws granting same-sex couples equal rights except for marriage. Passing a Bill is time consuming. Investigating and implementing new law can be a lengthy process. As parliament is not always sitting, changes in the law may have to wait some time and delays may occur due to political influences. Delegated authorities are not democratically elected. Other than local councils, which are elected, there are many subordinate authorities making laws and this undermines the democratic principle of representative government, on which our parliamentary system is structured. Government has control of both Houses of parliament. The government does not necessarily need to listen to the views of the community. It is able to pass its legislation without the effective review that would normally be provided by the upper House.

28 Chapter 2 Law-making: parliament and subordinate authorities 51 Apply your understanding Case studies Statutory interpretation How would you apply the Ghost Gully Cemetery Act to the following situations? Give reasons for your decisions. Case A Ghost Gully Cemetery contains a number of graves dating back to the nineteenth century. These graves are considered to be of historical importance. The local historical society wants to raise money to assist in meeting the costs of maintaining these graves. They decide to set up a stall selling flowers to visitors at the gates to the cemetery. Have they committed an offence? Case B A woman decides to bury her late mother in the same gravesite as her father (who died several years earlier). Unable to afford a new headstone, the woman decides to add her mother s name to her father s headstone. Using a marker pen, she writes her mother s name on the headstone. The cemetery curator sees her writing on the headstone and claims that she has committed an offence under Section 8 of the Act. Has she committed an offence? Case C A well-known cyclist has died. As a mark of respect, the local cycle club organises for cyclists to escort the hearse by riding in pairs in front of the hearse as it winds its way through the cemetery grounds. The cyclists ride in an orderly manner and do not create a disturbance. Have they committed an offence under the Act? Case studies Solicitation Section 13(2) of the Prostitution Control Act 1994 (Vic) states: A person must not for the purpose of prostitution solicit or accost any person or loiter in a public place. Consider the following cases, then answer the questions that follow. Case A Two prostitutes gained the attention of men walking by a house. The first prostitute was standing on a balcony on the building s second level and tapped on the rails as each male walked past below. The second was standing behind the window on street level and tapped on the windowpane as each male walked past. The judge ruled that each prostitute was soliciting for the purposes of prostitution. In giving his reasons, the judge remarked that solicitation involved the action that is projected to and addressed to someone walking in the street.

29 52 The Legal Maze Case B A prostitute placed an advertisement in a shop window containing information about her availability for services. The judge ruled that the prostitute was not soliciting because soliciting involves the physical presence of the prostitute and conduct on her part to an importuning of prospective customers. An advertisement is more in the nature of notice: if there is no physical presence, there is no offence. Case C A prostitute sat on a high stool in a window overlooking the street. The window was lit by a red light and the prostitute was dressed in a revealing top and mini skirt. She did not make a sound or signal to communicate with people passing by. However, she frequently left the window when a male entered the room and sat on the high stool in the window when the male left. The judge had to decide whether the action of prostitution was soliciting. The judge relied on cases A and B to make the decision that the prostitute was soliciting. The reasons for the decision were that she was soliciting in the sense of tempting or luring prospective customers to come in for the purpose of prostitution and projected solicitation to passersby. 1 What is the meaning given to soliciting in case A? 2 Was the meaning of soliciting in case A used to help reach a decision in case B? 3 How does case B add to our understanding of the term soliciting? 4 How does the decision in case C add to our understanding of the term soliciting? 5 Thinking about all three cases, how would you summarise the meaning of the term soliciting for the purposes of prostitution? Commonwealth Parliament: www. aph.gov.au and Victorian Parliament: www. parliament. vic.gov.au and gov.au. Investigation Changing the law Investigate parliament as a law-maker. Using an example of a law that parliament has recently made or changed, research the issues raised in relation to the change. Prepare a report that: describes the change in the law suggests reasons for the change in the law identifies the pressure groups who expressed views either for or against the change in the law discusses at least one type of action taken by these groups to highlight their views describes the processes used by parliament to bring about the change.

30 Chapter 2 Law-making: parliament and subordinate authorities 53 Case study Local council, local laws Read the article below, then answer the questions that follow. Dog law a little short on logic Big or small, short or tall, Mornington Peninsula s pooches are straining under rules restricting them to metre-long leads. The shorter leash law is meant to force dog owners to keep their canines close beside them when out and about. But the council regulation has animal lovers howling about rigid rules that could pit man especially a tall owner of a little dog against his best mate. Rosebud dog owner and Mornington dog obedience instructor Jan Frayle said that the laws would discriminate against taller people and would put dog owners out of pocket. Most leads are a bit over a metre but the most popular leads now are even longer and include the very long extender leads which, at more than $10 each, will all have to be replaced at the owner s cost, Ms Frayle said. You ve got the RSPCA on one hand warning animal owners they will introduce laws to prosecute people who fail to walk their dogs, yet dog owners in Mornington on the other hand will be waiting for someone to jump out of the bushes when they walk their dogs to measure the length of the lead. It is misguided and ludicrous. Council voted on December 21 to require that dogs be on leads not exceeding a metre. The rule applies when a dog is within 5m of any playground or play equipment, a sporting event or training ground, at permanent public barbecues and on shared pathways. It is supposedly designed to encourage owners to be in control of their dogs around other people and pets. But dog owner Greg Denman, of Mount Martha, said that the new law was brainless. Someone at Mornington Peninsula Shire has got a bee in their bonnet about dogs, and without any consultation at all with ratepayers or animal owners, they have rammed in a brainless, pointless law that is not fair to either dog or owner Source: Herald Sun, 7 January Where does the council obtain the power to make laws restricting dog owners to metre-long leads? 2 Explain the role of local councils in the law-making process. 3 How do the laws made by the local council reflect the local values and needs of the community? Which value does the above article represent? 4 Discuss the arguments for and against this by-law. 5 Suggest reasons why parliament delegates law-making powers to other bodies. 6 Explain the different types of subordinate authorities and provide an example of a law made by each body. 7 Outline the controls on subordinate authorities. Are these effective in the example above? Local government listings can be found at government.vic. gov.au. Structured assignment Your local council Find out more about the work of your local council. Find its website and highlight examples of the different types of laws that it has made in your local area. As part of your assignment you may also wish to refer to articles produced by your local newspaper. Prepare a poster that includes the following: a a map showing the geographic area covered by your local council b an explanation of how the local council is elected c a list of local councillors and a brief profile statement for each d at least three laws made by the local council and for each provide a brief explanation of the law and the penalties involved suggested reasons why the law may be needed in your area suggested reasons why the law is made by a local council rather than parliament.