Topic 1

Lesson Plan

Resources

Governance in Australia

Define:

• Democracy
• The rule of law
• Representative government

Discuss:

• Responsible government
• Separation of powers

Activity:

• Establish a dictionary with key words defined in workbook
• Watch the video What is the rule of law?
• Discuss a rule at school or a law that you know is strictly followed by students/people. Why is this   rule followed? Discuss a rule that is often broken. Why is this rule broken?
• Discuss why we need laws
• Watch Magna Carta video and then complete: Australia’s Magna Carta Institute: Magna Carta: Foundation of rule of law Worksheet. 

The Law Society of NSW. (2018). What is the rule of law? [Video]. YouTube. https://www.youtube.com/watch?v=0R20U9zkMmg

Rule of Law Education Centre. (n.d). Rule of Law Wheel. https://www.ruleoflaw.org.au/what-is-the-rule-of-law/

Australian Human Rights Commission.(2018). What is Democracy? [Video]. YouTube. https://www.youtube.com/watch?v=8Eu6G5YrBt4

Rule of Law Legal Studies.(2021). Magna Carta: The Foundation of the rule of law. [Video]. YouTube. https://www.youtube.com/watch?v=XuPRCV1RtZM&t=5s

The Australian Constitution

Define:

• Doctrine of precedent
• Referendum
• Double dissolution
• Joint sitting

Discuss:

• Unicameral representation
• Bicameral representation
• Bureaucratic procedures

Activity:

• Write definitions of key words
• Create a infographic or flow chart explaining the key features of the Australian Constitution
• Individually or in small groups search for recent newspaper articles on one of the key terms above
• Analyse the sources as a class or in small groups. Scan for keywords and phrases.
• Who decides what laws are made?

Australian Human Rights Commission. (2018). What is the Australian Constitution? [Video]. YouTube. https://www.youtube.com/watch?v=xyOH605fHW8

Australian Electoral Commission. (n.d). Referendums. https://www.aec.gov.au/elections/referendums/ 

Engage Wiki. (2015). Doctrine of Precedent. [Video]. YouTube. https://www.youtube.com/watch?v=ysfJJT6o4jM

Government in Australia

Define:

• The challenges of changing the Australian Constitution, using past referenda as examples
• Separation of powers and the importance of an independent judicial system.

Discuss:

• The role of s51 of the Australian Constitution, and residual powers with reference to current and/or landmark cases, e.g. the Tasmanian Dam Case (Commonwealth v Tasmania (1983) 158 CLR 1; [1983] HCA 21).

Activity:

• Write a paragraph on the structure and function of the three levels of government in Australia including concepts of representative and responsible government and accountability of parliament and the rule of law.
• Think about the Government responses to COVID-19. What was the response? What did they do well? How could it be improved?

Australian Electoral Commission. (n.d). 1999 referendum report. https://tinyurl.com/yc64uvcd

Parliament of Australia. (n.d). Part V- Powers of the Parliament. https://tinyurl.com/2ud4awpf

Legislative Powers

Define:

• The role of the crown
• Upper and lower houses of parliament.

Discuss:

• Differing legislative powers of federal and state parliaments under the Constitution, e.g. in the areas of health, education, immigration or the environment
• Implications of the unicameral parliament in Queensland
• Implications of single majority, double majority and minority governments
• Function of parliament as a law-making body and describe the legislative process.

Activity:

1. Research the Tasmanian Dam Case which is one of the most famous and influential environmental law cases in Australian constitutional law.
2. Watch the video on YouTube.
3. Read through the official documents available on the Environmental Law Australia website.
4. Explain and analyse the strengths and weaknesses of parliament as a law-making body.

Environmental Law Australia.(n.d). Tasmanian Dam Case. http://envlaw.com.au/tasmanian-dam-case/

McGrath, C. (2015). The Story of the Tasmanian Dam Case. [Video]. YouTube. https://tinyurl.com/nfjmwhpm

Parliament of New South Wales. (n.d). Understanding the role of the crown in parliament. https://tinyurl.com/mrmt3hb8

Specialist courts

Define:

• The Family Court
• The Children’s Court
• Murri Court
• Adminstrative Appeals Tribunal (AAT)
• Queensland Civil and Administrative Tribunal (QCAT)

Discuss:

• Why are there Specialist Courts?
• What are their purposes?
• Murri Court links Aboriginal and Torres Strait Islander defendants to cultural and support services to help them make changes in their lives and stop offending.

Activity:

1. Watch the video about Murri Court.
2. Research and discuss Supreme Court, Industrial Court, Land Appeal Court, Drug and Alcohol Court, Coroners Court, Children’s Court, and Mental Health Court. What is the purpose of these courts?

Queensland Courts. (n.d). Murri Court. https://tinyurl.com/ymtvzn85

Queensland Sentencing Advisory Council. (2020). Murri Court: Doing Justice Differently [Video]. YouTube. https://www.youtube.com/watch?v=Onl8bHr9FLM

Queensland Courts. (n.d) Courts.                   https://www.courts.qld.gov.au/courts

Moore, M. (2001). The Role of Specialist Courts : An Australia Perspective. Federal Judicial Scholarship. AustLII. https://tinyurl.com/385vu4v6

Over-representation

Define:

• Over-representation

Discuss:

•  As a class discuss over-representation in society eg. crime statistics, traffic crimes etc.

Activity:

1. Examine the Australian Law Reform Commission Website. Specifically over-representation section.
2. Individually or in pairs, create a presentation that provides an examination of the over-representation of Aboriginal and Torre Strait Islanders in our legal system. The presentation should include:

• What percentage of Aboriginal and Torres Strait Islanders are imprisoned in Australia?
•  How does this compare with non-Aboriginal and Torres Strait Islanders?
• What reasons are given for this over-representation?
•  Has this changed over time?

Australian Law Reform Commission. (2018). Over-representation. Australian Government.                  https://tinyurl.com/rpzv8anp

Effective Laws and Rights

Define:

• Legislation
• Laws
• Doctrine of precedent (revise)
• Social cohesion

Discuss:

• The role of individuals, laws and the legal system
• The principles of justice: fairness, equality and access
• Effective law characteristics
• Common law and statute law

Activity:

1. In dot point form- explain what legal and non-legal rules are
2. Think of an example for each rule
3. Read Rights and liberties of individuals in the Legislation Handbook. In your own words summarise the rights and liberties you have in Australia under the law.
4. Watch the documentary Every Family’s Nightmare. Apply your knowledge of laws and rights to this real case.
5. Work through the teacher notes for Every Family’s Nightmare. 
6. Optional- ask students to choose a current case from the newspaper to look at the laws and rights of the individuals involved according to the rights and liberties of individuals.

Attorney-General’s Department. (n.d). Courts. Australian Government. https://www.ag.gov.au/legal-system/courts

James Cook University Library. (2022). Eddie Koiki Mabo: A timeline of history in the making. James Cook University Open eBooks. https://tinyurl.com/mt9k9r2z

Queensland Government. (n.d). Queensland Legislation. https://www.legislation.qld.gov.au/

State Library of New South Wales. (n.d). Precedent and Evidence. https://tinyurl.com/3e832uhw

Prospero8800. (2013). Every Family’s Nightmare. [Video]. YouTube. https://www.youtube.com/watch?v=X7Db_IhQgNc

Muntz, M., Punchard, E., & Redwood, J. (2013).  Teacher Notes- Every Family’s Nightmare. National Film and Sound Archive. https://shop.nfsa.gov.au/every-familys-nightmare

Law Reform

Define:

• Law Reform

Discuss:

• How laws are made

Activity:

Case Study (choose one to research in groups or pairs)

•  Mabo v. Queensland (No. 2) (1992) 175 CLR 1; [1992] HCA 23
• Wik Peoples v. Queensland (1996) 187 CLR 1; [1996] HCA 40

Analyse legal issues by determining the nature and scope of the issue and examining viewpoints and consequences

Activity: (in pairs)

1. Read a local newspaper.
2. Search for reports that mention current criminal and civil cases.
3. Summarise a report – name of court, name of judge, the nature of the dispute, parties involved, progress of case.
4. Present to the class. (Gray and Herlily, 2004).

State Library of New South Wales. (2014). How Laws are made- parliament. Public Library Services. [Video]. YouTube. https://www.youtube.com/watch?v=lNZ8CQUak6A

Case law versus legislation

Define:

• Difference between case law and legislation.
• Doctrine of precedent

Discuss:

• How is legislation formed? What is the process?
• How is case law determined?  (Case laws are made by judges through their decisions in court cases. This is known as the doctrine of precedent.
• How legislation has changed over time?
• What was once considered appropriate are now crimes?
• How is case law determined?

Activity:

• Think about how legislation has changed over time. E.g. Seatbelts became mandatory in 1969. In July 2021 new rules made it illegal for a driver to hold a mobile phone in their hand or have it resting on their lap.
• Make a list of laws that have changed over time. Ask your parents, grandparents about laws that have changed or come into effect in their lifetime.

Queensland Government. (2012). Legislation- How laws are made. https://tinyurl.com/3bdm4z69 

Topic 2

Lesson Plan

Resources

Advocacy groups

Define:

• Democracy (revise)
• The Rule of Law (revise)
• Inquiries
• Law reform (revise)
• Lobby
• Advocacy
• Citizens’ jury

Discuss:

• Why laws and related processes require change because of a rang of impetus. eg.
  – society’s changing values, needs, morality and ethics
  – the influence of lobby and advocacy groups and the media
  – patterns of crimes and civil offences eg. family and domestic violence, privacy
  – technological advances- forensic science, investigative process and developments
  – increased organised and transnational crime
  – a current issue
  – change impetus of significant events e.g. the Port Arthur Massacre and September 11 terrorist attacks.

Activity:

1. Students to think about how change comes about.
2. Check students understand key terms -revise Law Reform, Australian Law Reform Commission (ALRC) and Attorney- General of Australia.
3. Conduct a law reform inquiry by investigating a law reform issue and present recommendations to a citizen’s jury (PEO).
4. Go to the Parliamentary Education Office and work through the steps to conduct the inquiry (two lessons)

Australian Federation of Disability Organisations. (n.d). Disability advocacy organisations. https://www.afdo.org.au/

ANTAR.(n.d). Current Campaigns and Issues. https://antar.org.au/

Parliamentary Education Office. (2022). Conduct a law reform inquiry. Commonwealth of Australia. https://tinyurl.com/525decdx

Human rights

Define:

• Terms of reference
• Consultations
• Utilitarianism
• Issue papers
• Submissions

Discuss:

What changes have occurred around issues such as women’s rights, disability rights?

Activity:

1. Using computers ask students to navigate to The Conversation.
2. Search for key terms in recent law and governance articles.

United Nations. (n.d). Universal Declaration of Human Rights. https://tinyurl.com/2p87ttv2

Australian Human Rights Commission. (n.d). Women’s Rights. https://tinyurl.com/5n7r774a

CrashCourse. (2016). Utilitarianism: Crash Course Philosophy #36. [Video]. YouTube. https://www.youtube.com/watch?v=-a739VjqdSI

Commissions

Define:

• Commissions
• Parliamentary inquiries

Discuss:

• The law reform commissions
• Examine the guiding criteria of making laws and related processes more equitable, modern, fair and efficient, e.g. – Royal Commission into Institutional Responses to Child Sexual Abuse
  -Royal Commission into the Child Protection and Youth Detention Systems of the Government of the Northern Territory
  – Royal Commission into the Home Insulation Program
  – Royal Commission into Trade Union Governance and Corruption parliamentary inquiries

Activity:

1. Examine the coronial inquest – Gabe Watson (the ‘Honeymoon Killer”)
2. Use the case study and work through the questions.
3. What changes, if any have occurred because of commissions?
4. Why did these changes come about?

Woodgate, R., Biggs, J., & Owens, D. (2018).  Legal Studies for Queensland: Units 1 & 2 Volume 1 (8th ed.). Legal Eagle Publications.

Office of the Townsville Coroner. (2003). Findings of Inquest. Queensland Courts. https://tinyurl.com/4wbb8ztx

Hanger, I. (2014). Report of the Royal Commission into the Home Insulation Program. Analysis & Policy Observatory [APO]. https://apo.org.au/node/41087

Grattan, M. (2014). Royal Commission says insulation deaths were fault of the government’s program. The Conversation. https://tinyurl.com/4krrpxyx

Tent Embassy

Define:

• Tent Embassy

Discuss: (prior knowledge)

• How has life changed for Aboriginal and Torres Strait Islander peoples’ throughout history?
• What do you think brought about these changes?

Activity:

1. Students to research the nature and purpose of the tent embassy.
2. Highlight key terms and notate this article on the Tent Embassy.
3. In groups research the Aboriginal Sovereign Manifesto of Demands.

National Museum of Australia. (n.d). Defining moments: Aboriginal Tent Embassy. https://tinyurl.com/pae97eb5

Carlson, B., & Coe, L-J. (2022). A short history of the Aboriginal Tent Embassy- an indelible reminder of unceded sovereignty. Museum of Australian Democracy at Old Parliament House. https://tinyurl.com/yhjae89p

Langton, M. (n.d). Sovereignty: 65,000 years of Ancestral links to land. Agreements Treaties and Negotiated Settlements.                  https://tinyurl.com/yc82mubj

Sovereign Union-First Nations Asserting Sovereignty. (n.d). Aboriginal Sovereign Manifesto of Demands. https://tinyurl.com/mr48hejr

Recognising Aboriginal and Torres Strait Islander Sovereignty

Define:

• Sovereignty

Discuss:

• The efforts made by Indigenous people to reassert their sovereign title to Country

Activity:

• Read the Uluru Statement From the Heart  using the interactive website
• Discuss in a pair what the statement is about
• Read the ABC news article Traditional owners mark one year since closure of Uluru Climb.
• Right a response to this question- Why is the closure of the Uluru climb important?

Australian Human Rights Commission. (2002). Recognising Aboriginal sovereignty-implications for the treaty process.    https://tinyurl.com/3zepw8dz

Langdon, M. (n.d). Understanding Sovereignty. Sovereignty: 65, 000 years of ancestral links to land.  Agreements Treaties and Negotiated Settlements. https://www.atns.net.au/understanding-sovereignty

The Uluru Statement. (2022). The Uluru Statement From the Heart. https://ulurustatement.org/

Mackay, M. (2020). Traditional owners mark one year since closure of Uluru climb. ABC News. https://tinyurl.com/yc5z2snh

The doctrine of terra nullius

Define:

• terra nullius

Discuss:

•  Social justice and human rights

Activity:

1. Write a short response on protests, Manifesto of Demands or sovereignty.
2. Read Callum Clayton-Dixon’s article in the Guardian.
3. What does he mean in the article when he says “Aboriginal sovereignty is integral to the future of Indigenous people in Australia?”

Clayton-Dixon, C. (2015). I can’t call myself an Indigenous Australian and also say sovereignty never ceded. The Guardian.
https://tinyurl.com/2p84f359

Justice Jagot. (2017). Opening Address to the Law Society of New South Wales Young Lawyers‘ Conference. Federal Court of Australia. https://tinyurl.com/y6ejmwnd

McBride, L., & Smith, M. (2021). Terra nullius. Australian Museum. https://tinyurl.com/2nc5kv9d

Impact of landmark decisions

Discuss:

• Ask the class if they have heard of Mabo v Queensland or The Mabo Decision?
• What do they know about the case?
• The role of advocates in bringing an important social and legal issue to the forefront of the Australian public.

Activity

1. Read the chapter 30 Years of the Mabo Legacy in JCU Open eBooks Eddie Koiki Mabo: History in the Making
2. What was Eddie Mabo’s Case? Describe in your own words.

Q+A. (2022, June 3). The legacy of Eddie Koiki Mabo [TV series episode]. YouTube. https://youtu.be/oLaTtIcAg8w

James Cook University Library. (2022). Eddie Koiki Mabo: A timeline of history in the making. JCU Open eBooks. https://tinyurl.com/4zecs3hs

The High Court’s Mabo decision

Define:

• The High Court (revise)

Discuss:

• The Mabo Case outcome

Activity:

The High Court’s decision was a 6:1 majority.

• Divide the class in two groups (size dependent) and ask one group to research the majority decision and other, the dissenting judge.
• They are to present to the class the reason for each of the judgments.

Australian Institute of Aboriginal and Torres Strait Islander Studies. (n.d). Overturning the Doctrine of Terra Nullius: The Mabo Case. https://tinyurl.com/2baf67zk

Wik Peoples v Queensland (1996).

Define:

• Native Title
• Exclusive possession
• Judgement
• Claim

Discuss:

• What was the Wik decision about?
• What did the decision achieve?

Activity:

• Individually or as a class go on the virtual Eddie Koiki Mabo Timeline tour. 
• Write an extended response to this question: how did the Mabo decision and the Wik decision influence legal change in Australia?

Australian Institute of Aboriginal and Torres Strait Islander Studies. (n.d). Case Summary: Wik Peoples v Queensland. https://aiatsis.gov.au/publication/35303

Durmush, G. (2018). Explainer: Wik Vs. Queensland. National Indigenous Television. https://tinyurl.com/mu47f5u

Attorney-General’s Department. (n.d). Native Title. Australian Government. https://tinyurl.com/bdza5uwn

Federal Register of Legislation. (1993).  Native Title Act 1993. Australian Government. https://tinyurl.com/5yu4bhze

James Cook University Library. (n.d.). Virtual tour of the Mabo Timeline interpretative wall. https://tinyurl.com/2p9a2kup

Reflection

Define:

• Doctrine of precedent (revise)
• Case law versus legislation (revise)
• Law reform (revise)
• Human rights (revise)

Discuss:

• What impact can the High Court of Australia have on case law?

Activity:

1. Look at two cases – Imbree v McNeilly (2008) 236 CLR 510; [2008] HCA 40 and Cook v Cook (1986) 162 CLR 376; [1986] HCA 73.These cases have similar facts, however, the two decisions span over 20 years.
2. Reflect on the power the High Court of Australia can have on the law.
3. Do you think it is important that the High Court can overrule previous decisions?
4. What has been the long lasting impact of the Mabo decision on human rights and justice?
5. Identify some of the issues and challenges that face Indigenous communities today.
6. Think about the consequences of the Native title claim process.
7. What is Eddie Koiki Mabo’s legacy?

Lawrence, C., Flynn, L., & Harris, I. (2022). Native title compensation: Not much to see but plenty happening below the surface. https://tinyurl.com/5n7mv3tb

Miller, I. (2022). The legacy of Eddie Koiki Mabo: Mabo Day. Queensland Museum Network. https://tinyurl.com/2e572chh

1

Mikiandme. (2015, September 30). Critical Legal Thinking. MIKIANDME. https://mikiandme.wordpress.com/

An interesting point came up while reading about critical legal studies in that legal realists and critical legal scholars believed that judges when making their decisions conceal the true nature of the decision under the guise of an objective rather than subjective position.

Well of course they do.  It would be inherently impossible for any person to use a truly objective position in making any decision.  It is to the very core of our human nature to form subjective opinions and even make subjective decisions or determinations.  Oh, we say they are objective to appease the need of law, but it would be truly impossible to be purely objective in any thought process.  We will always be influenced by our internal governance.  I don’t think it is deliberate and possibly that is why judges use elaborate rationalizing, not to disguise what they are saying, but rather to ensure they are being as objective as is humanly possible.

French, R.S. (2009, November). Judicial Activism – The Boundaries of the Judicial Role. [Paper presentation]. Law Asia Conference 2009, Ho Chi Minh City, Vietnam. https://tinyurl.com/2mxvxr2m

Much room is left for judges in the interpretation process to determine what the law is. But if that occasions complaint then the complaint is misconceived. The meanings of legislative words are not like rocks lying around on the ground waiting to be picked up. They are necessarily products of interpretation. That interpretation is legitimate when it is principled and invokes criteria which, whether developed by courts or decreed by statute or both, are broadly understood by the legislature, the executive and the judiciary. And to that extent they represent another example of a necessary, legitimate and generally accepted authority to the judges to determine what the law is by determining what it means.

Kirby, M., (2006). Judicial Activism: Power without Responsibility? No, appropriate activism conforming to duty. University of Melbourne. https://tinyurl.com/27k9sn8y

Judicial activism: power without responsibility?

The decision in Mabo changed the line of legal authority, for two reasons. The first was the acceptance
that the old theory of law had been founded on a factual error. The second stimulus to a changed
approach was the international law of human rights.
Formally, it would have been understandable if the High Court had left the law as it was. But courts are
about law and justice. That is the oath that judges take.

Allan, J.,(2012). “The Three ‘Rs’ of Recent Australian Judicial Activism: Roach, Rowe and (No)’Reginalism.” Melbourne University Law Review. Auslii. https://tinyurl.com/2p8sj35z

Judicial activism … undermines the rule of law in its old-fashioned procedural sense of the desirability of
being governed by the use of general rules, known in advance, that allow citizens to shape their
expectations and so guide their behaviour.

Sakr, J.M., & Zimmermann, A. (2021). Judicial Activism and Constitutional (Mis)Interpretation. University of Queensland Law Journal 40(1), 119-143. https://tinyurl.com/4n7ck6s3

Judicial Activism and Constitutional (Mis)Interpretation: A Critical Appraisal.

Such an approach regards judicial activism as always preferable, while an intentionalist or purposive
approach would be relevant only in terms of legal history. Based on such a premise, Deane J opined that
to take an originalist approach is ‘to construe the Constitution on the basis that the dead hands [of the
past] reached from their graves to negate or constrict the natural implications of its express provisions or
fundamental doctrines’, to deprive the document of ‘its vitality and adaptability to serve
succeeding generations.
Most Australians would recognise the wisdom and timeliness of the decision in the Mabo case.
Yet the criticism of them as ‘judicial activism’ is endless in the muttering circles of conservative lawyers.
What they need to be told is that the law moves and changes and does not stand still. Basic considerations
of legal principle and common justice in true equality for all sometimes require change.

It is no coincidence that the rise of the “judicial activism” terminology coincided not only with the Wik decision but also with the new Coalition government’s campaign to ensure all arms of government focused on the protection of “mainstream” interests. The Coalition argued these had been ignored at the expense of progressive, boutique interests during the Keating government years.’