VCE Legal Studies Unit 4 Constitution and law reform deep-dive 2026

How Unit 4 fits into VCE Legal Studies

Unit 4 "The people and the law" is where VCE Legal Studies leans hardest on Australian constitutional law and the relationship between Parliament and the courts. It runs across two Areas of Study: the people and the Australian Constitution, and the people, the parliament and the law. Unit 4 is the part of the course that distinguishes VCE from interstate equivalents, and it generates the stimulus-based items that reward precise constitutional reasoning.

This guide covers the division and separation of powers, section 109 inconsistency, the express rights and the implied freedom of political communication, the role of the High Court, statutory interpretation and precedent, and the means of constitutional and statutory law reform. It closes with a model extended-response paragraph. The recurring marking theme is accuracy: cases, section numbers and dates must be real and well established, and a defensible judgement must be reached on evaluation questions.

The division of powers

The Australian Constitution distributes legislative power between the Commonwealth and the states. This is the division of powers.

• Exclusive powers. Only the Commonwealth may exercise these (for example, the power to coin money under s 51(xii) read with s 115, and customs and excise under s 90).
• Concurrent powers. Both the Commonwealth and the states may legislate (most s 51 heads, such as taxation, marriage and trade). Section 109 resolves any resulting conflict.
• Residual powers. Matters not listed for the Commonwealth remain with the states, which retain plenary legislative power (for example, criminal law, education, public transport).

Over time, Commonwealth law has expanded into areas once dominated by the states, particularly through the external affairs power (s 51(xxix)), used to implement treaties (Commonwealth v Tasmania (1983) 158 CLR 1, the Tasmanian Dam case), and the corporations power (s 51(xx)) (New South Wales v Commonwealth (2006) 229 CLR 1, the WorkChoices case).

The separation of powers

The Constitution also divides Commonwealth power among three arms of government. This is the separation of powers.

The separation of powers protects against the concentration of power and supports the independence of the judiciary, which underpins the rule of law and the fair determination of disputes between citizens and the state.

Section 109 and inconsistency

Where both the Commonwealth and a state have legislated in a concurrent area and the laws conflict, section 109 resolves it.

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

There are three forms of inconsistency:

1. Direct inconsistency, simultaneous obedience impossible. The two laws impose contradictory obligations.
2. Direct inconsistency, state law alters or impairs the Commonwealth law. Even where obeying both is possible, the state law diminishes the Commonwealth law's operation (Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466).
3. Indirect (cover the field) inconsistency. The Commonwealth law manifests an intention to cover the field exhaustively, so any state law in that field is inconsistent (Ex parte McLean (1930) 43 CLR 472).

The consequence is partial: only the inconsistent portion of the state law is invalid, and it revives if the Commonwealth law is later repealed. Leading cases include the Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 (the Engineers Case), which established that Commonwealth heads of power are read on their natural meaning and prevail in concurrent areas, and Commonwealth v Australian Capital Territory (2013) 250 CLR 441, in which the High Court struck down the Marriage Equality (Same Sex) Act 2013 (ACT) because the Marriage Act 1961 (Cth) covered the field.

Express rights and the implied freedom

The Constitution contains only a small number of express individual rights. It is not a bill of rights.

Section 41: the right to vote in Commonwealth elections (largely transitional after R v Pearson; Ex parte Sipka (1983) 152 CLR 254). Section 51(xxxi): acquisition of property on just terms (JT International SA v Commonwealth (2012) 250 CLR 1, the tobacco plain packaging case, confirmed not every impairment is an "acquisition"). Section 80: trial by jury for indictable Commonwealth offences (read narrowly: Parliament chooses whether an offence is indictable, Cheng v The Queen (2000) 203 CLR 248). Section 116: freedom of religion at the federal level (narrowed in Attorney-General (Vic); Ex rel Black v Commonwealth (1981) 146 CLR 559, the DOGS case). Section 117: freedom from state-residence discrimination (read broadly in Street v Queensland Bar Association (1989) 168 CLR 461).

The implied freedom of political communication is derived from the requirement in ss 7 and 24 that members of Parliament be "directly chosen by the people".

• Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 first recognised the freedom, striking down a ban on political advertising.
• Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 restated it as a limitation on legislative power, not a personal right, and set a two-step test: does the law burden the freedom, and is it reasonably appropriate and adapted to a legitimate end compatible with representative and responsible government?
• McCloy v New South Wales (2015) 257 CLR 178 refined the second step into structured proportionality (suitability, necessity, adequacy of balance).
• Brown v Tasmania (2017) 261 CLR 328 struck down anti-protest provisions targeting forestry protests.

The role of the High Court

The High Court of Australia is the apex court and the guardian of the Constitution. Its constitutional roles include:

• Interpreting the Constitution. The High Court gives meaning to constitutional terms and heads of power. The Engineers Case (1920) reset the method toward the natural meaning of the words.
• Determining the validity of laws. The Court can strike down a Commonwealth or state law that exceeds constitutional power or breaches an express or implied limitation (for example, Commonwealth v Australian Capital Territory (2013)).
• Acting as a check on power. By enforcing the separation of judicial power and the implied freedom, the Court constrains the legislature and executive.

The High Court cannot change the words of the Constitution; only a referendum under s 128 can do that. It can, however, develop the interpretation of those words over time, which has the practical effect of shifting the balance of power within the federation.

Statutory interpretation and precedent

Beyond constitutional cases, the courts make law by interpreting statutes and developing the common law.

Statutory interpretation. Victorian courts apply the purposive approach mandated by the Interpretation of Legislation Act 1984 (Vic) s 35, preferring a construction that promotes the purpose of the Act. The Commonwealth equivalent is the Acts Interpretation Act 1901 (Cth) ss 15AA and 15AB, the latter permitting extrinsic materials such as the second reading speech where a provision is ambiguous. The leading authority is Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, which begins with text and context, with purpose informing the choice between candidate meanings.

The doctrine of precedent. Under stare decisis, lower courts in a hierarchy must follow the ratio decidendi (the legal reasoning essential to the decision) of higher courts in the same hierarchy; obiter dicta are persuasive only. Courts manage precedent through four techniques: distinguishing (material facts differ), reversing (an appellate court reverses the same case), overruling (a higher court rejects a precedent from an earlier case) and disapproving (signalling disagreement without overruling). The High Court is the only court that may overrule its own previous decisions, and does so cautiously.

Means of law reform

Law reform happens by two routes: changing the Constitution and changing statute and common law.

Changing the Constitution: the referendum

The only way to alter the text of the Constitution is a referendum under s 128. A bill to alter the Constitution must pass both houses (or be passed twice by one house after a three-month interval), then be put to electors. It succeeds only with a double majority: a national majority of voters, and a majority of voters in a majority of states (four of the six states).

Changing statute and common law

Outside the Constitution, the law is reformed through:

• Parliamentary lawmaking. Parliament can pass new Acts, amend existing Acts, codify common-law rules (the Native Title Act 1993 (Cth) codifying Mabo v Queensland (No 2) (1992) 175 CLR 1) or abrogate court decisions (the Wrongs (Animals Straying on Highways) Act 1984 (Vic) reversing Trigwell v State Government Insurance Commission (1979) 142 CLR 617).
• Court-driven development. Courts interpret statutes and, where Parliament is silent, develop the common law incrementally (the recognition of native title in Mabo).
• Law reform bodies. The Victorian Law Reform Commission, the Australian Law Reform Commission and parliamentary committees investigate and recommend reform, which Parliament may then enact.
• Influences on Parliament. Petitions, demonstrations, the use of the courts to highlight a defect in the law, the work of the media and pressure groups, and royal commissions all influence the parliamentary agenda.

The dialogue between Parliament and the courts is constant: courts interpret, Parliament responds by amending, and the cycle continues.

Check your knowledge

A mix of definitional, application and exam-style questions covering Unit 4. Answer all under exam conditions, then check against the solutions block. Allocate roughly 1.5 minutes per mark.

1. Distinguish between the division of powers and the separation of powers. (4 marks)
2. Explain the three forms of inconsistency under section 109 of the Constitution, citing one case for at least two of them. (5 marks)
3. Identify the five express rights in the Constitution by section number and subject. (5 marks)
4. Explain why the implied freedom of political communication is described as a limitation on legislative power rather than a personal right, citing one case. (4 marks)
5. Describe two roles of the High Court in relation to the Constitution. (4 marks)
6. Explain the difference between codification and abrogation, giving one example of each. (4 marks)
7. Explain the process for altering the Australian Constitution under section 128, including the double-majority requirement. (5 marks)
8. Discuss the significance of section 109 for the division of powers, referring to at least two leading cases and to the practical expansion of Commonwealth law over time. (8 marks)