4.2 - The People, The Parliament, And the Courts Flashcards
Analyse the roles of the houses of the commonwealth parliament in restricting law-making by parliament (4 marks)
The House of Representatives/lower house has a role to control government expenditure. This is because money bills can only be introduced in the lower house as the government sits there. This may restrict parliaments law-making abilities as the lower house may take extended periods of time determining how the government spends their money. This is especially true if there is a slim majority, gas the opposition and independents may consistently vote with their party lines and against the government, making it difficult for the bills to pass.
The senate/upper house has a role to act as a house of review, meaning to scrutinise and provide feedback on bills initiated and passed through the lower house. This restricts parliaments law-making ability as the bill is likely be sent back to the lower house with suggested amendments. This is especially true if there is a a hostile senate, as members as likely to vote with their party lines and thus the bill won’t be passed.
Explain 2 other factors that restrict the commonwealth parliaments ability to make law (4 marks)
The representative nature of parliament occurs as those in parliament are elected by the people to make laws on their behalf, and therefore should represent the views of the majority. This may restrict parliament in law-making as they may be unwilling to initiate law reform in areas that that may conflict with the views of the majority, or views from other vocal parties.
Domestic political pressures are political pressures on the commonwealth parliament within Australia. Domestic political pressures often occur due to individuals and groups using demonstrations and petitions in attempt to force law reform. This can restrict law-making in parliament as the government may be unwilling to pass controversial bills
Describe the process of disapproving as it relates to the doctrine of precedent (2 marks)
When a court disagrees with a binding precedent, it may express its dissatisfaction often done with a statement of disapproval made as obiter dicta. This does not allow the court to avoid following the precedent as it is binding as outlined in the doctrine of precedent
Outline two restrictions on the law-making powers of the state parliaments (2 marks)
Under S114 of the Australian constitution, states law-making powers are restricted by banning them from forming their own military or naval forces
Under S115 of the Australian constitution, states law-making powers are restricted by banning them from creating their own currency
Explain the doctrine of precedent (3 marks)
The doctrine of precedent is the process of judges following legal reasoning behind the decisions of higher courts within the same court hierarchy. Precedent establishes a legal principle/role that must be followed by other courts that are ranked lower in the same court hierarchy when the cases are similar. The doctrine of precedent ensures consistency and predictability which allows trust in the law and legal system
Discuss how the doctrine of precedent can affect the ability of courts to make law (5 marks)
The doctrine of precedent can affect the courts ability to make law as if a lower court has a similar case as a higher court in the same hierarchy then they will be bound by binding precedent, thus restricting the lower courts ability to make law. However, courts can avoid this and set precedent/court law by distinguishing, which means to find a difference in the material facts of each case, thus allowing courts to make law. This is because precedent set by a higher court in the same court hierarchy is only binding on a lower court where material facts were similar.
The doctrine of precedent can affect courts ability to make law if they are influenced by persuasive precedent. This is as while the court may not be bound by binding precedent, they are still likely to consider persuasive precedent, so as to ensure consistency and trust in the legal system, thus affecting courts ability to make law. However, as persuasive precedent is not binding a judge may choose know to follow it, thus creating precedent/law. This outlines how persuasive precedent only somewhat affects courts ability to make law.
Overall, precedent can affect courts ability to make law, however there are ‘loopholes’ that can be used to avoid following precedent such as distinguishing.
Define statutory interpretation (1 mark)
Statutory interpretation is when judges are called upon to give meaning to/interpret words or phrases of a statute, which may occur if the meaning is unclear or if there is a dispute concerning the meaning
Explain one reason for and one effect of statutory interpretation (4 marks)
One reason for statutory interpretation is that there may be problems applying the statute to a court case. This may be because the meaning of words can change over time and thus need the meaning of them needs to be defined. This is shown with the phrase ‘de facto relationship’ which once was limited to a man and a woman, but overtime has become inclusive of all genders.
One effect of statutory interpretation is that the interpretation of the words/phrases sets precedent for future cases to follow, which will occur until the precedent created is extended, reversed, or overruled by a higher court or by parliament
Parliaments and courts have a relationship in regards to law making
Explain what is meant by the supremacy of parliament (1 mark)
The supremacy of parliament means that parliament is the supreme law-making body with the ability to make and change any law within its constitutional power.
Analyse two other features of the relationship between parliament and courts in law-making (6 marks)
Courts have the ability to influence parliament. This is done indirectly through comments made to encourage law reform when handing down judgements during either the judges reasoning or as obiter dictum. This may cause parliament to use the suggestions made by the court as influence to undergo law reform. For example, in the Trigwell case the high court was reluctant to set a new precedent that land owners should be responsible for damage caused by their stray animals, so they stated that the law should be changed by the parliament.
Parliament has the ability to codify common law. As they are the supreme law-making body, parliament can make law the confirms a precedent set by the courts, which is referred to as codification of common law. This involves the parliament passing legislation that reinforces principles established by the court in their ruling. An example of this is that the commonwealth parliament codified principles established in the Mabo case, including recognising the land rights for Indigenous Australians in the Native Title Act 1983 (Cth)
Using an example for each, explain two reasons for law reform (4 marks)
There may be a greater need for protection in society if certain events or situations are increasing in occurrence. An example of this is Crime Amendments (sexual offences) Act 2016 banned people from mooning in public following concern regarding the frequency of this behaviour.
There may be a greater need to provide access to the law. This is to assist people in their efforts to seek just resolution to disputes that arise, and thus the law is changed to provide greater access. An example of this is Courts and Sentencing Litigation Act 2012 (Vic) created a Melbourne county Koori court foe the sentencing of indigenous offenders in specific circumstances to help improve their access to fair and culturally relevant justice.
With reference to one recent example of a recommendation for law reform evaluate the ability of one royal commission to influence a change in the law (6 marks)
After recommended law reform to for greater need for protection in the community, the royal commission into Family Violence in 2015 resulted in recommendations such as safety hubs in local communities and establishing more family violence costs.
It influenced a change in the law as the government establishes royal commissions and thus are more likely to act on their recommendations of law reform. This means that the royal commission into family violence was likely to influence change in law. However, parliament is not obliged to adopt any of the royal commissions recommendations. This means that although the royal commission is influential on parliament to undergo law reform, parliament may choose not to anyway.
The royal commission into family violence influenced a change in the law as they can receive public meetings. This allows for the government to understand the public perspective on the recommended law reform, and also increases public awareness which both amount to a greater likelihood that the parliament will undergo the suggested law reform. However, royal commissions can be very time consuming and by the time that the report is made and the parliament has received recommendations on law reform, they may be uninterested/unwilling to undergo the recommendations.
Overall, royal commissions have a large ability to influence a change in the law however it all comes down to parliaments decision regardless of the royal commission.
Evaluate the ability or parliament to respond to the need for law reform (8 marks)
Parliament have a high ability to respond to the need for law reform as they were elected by the people and so in theory should be keeping up to date with the views of the majority and undergoing law reform accordingly. This heightens their ability to respond to the need for law law reform. However, in reality parliament can be slow to change controversial law for fear of any backlash that may result in the government being voted out in the next election. This lessens their ability to respond to the need for law law reform.
Parliament have a high ability to respond to the need for law reform as they can make or change any statutes to reflect the views and values of society. This portrays their heightened ability to be able to respond to the need for law reform. However, financial restrictions can sometimes mean parliament is constrained in its ability to change the law. This conveys how parliament have limits in their ability to respond to a need for law reform.
Parliament have a high ability to respond to the need for law reform as they are the supreme law making body and therefore can abrogate any common law (except high court in constitutional matters) to ensure that the law reflects community views and values. This depicts how parliament have the ability to respond to a need for law reform. However, in reality parliament may abrogate common law for reasons that are not in the best interests of the communities views and values. For example, they may abrogate sound common law to gain political advantage.
Overall, parliament have a good ability to respond to the need for law reform, however in reality this ability relies on the interests of those who sit in parliament.
