Area of study 2 Flashcards
The roles of the Houses of Parliament
The effectiveness of the Lower House may depend on whether the government has a minority or majority of seats in the lower house.
If the government has majority of seats in both the upper and lower house it will be able to implement election promises without opposition.
A Minority government results when neither major party has the majority of seats in the lower house therefore unable to form government without the support of other minor parties/independents.
Issue with a hung upper house is that a small group of crossbenchers can hold a disproportionately large amount of power. When a group of crossbenchers can either vote with the government to pass bills or vote with the opposition to reject bills, those cross-benchers are said to hold the balance of power in the house.
Pros of having a majority in both upper and lower houses
The government is able to implement policies and law reform as it has the majority of seats in both houses.
Cons of having a majority in both upper and lower houses
Little debate over the government’s policies, little opportunity for private members bills to be passed as the government can easily reject these without debate.
Pros of having a minority in both the upper and lower houses
As the government doesn’t have the numbers to pass bills they propose, it ensures that any bills proposed are adequately discussed and debated.
Cons of having a minority in both the upper and lower houses
The government must constantly negotiate with minor parties in order to pass policies and law reform to fulfil its election promises.
Rubber stamp
All bills must pass through both houses of parliament before they become law. If the government holds a majority in both the upper house as well as the lower house then government bills will all be passed.
While this ensures the government can implement its promised and planned legislative program, it may limit the upper house effectively acting as a house of review
and the lower house not adequate scrutinising or reviewing them.
The representative nature of parliament
Parliament and government consist of members elected by the people to make laws on their behalf (representative democracy).
If Parliament passes a law that the public disapprove of they may be voted out by the public at the next election, this ensures that law reform is in line with public interest.
Political pressures
Pressure from voters, politicians, controversial topics and short term interest.
Sometimes law reform doesn’t even make it to Parliament because of internal politics within parties.
Unwilling to legislate/make law in controversial areas due to fear of vocal backlash.
Legislation with views to do with helping the future might not have positive short term effects therefor are avoided.
Law making restrictions
Parliament is the supreme law making body in its jurisdiction
Parliament doesn’t hold ULTIMATE law making power as there are restrictions in certain areas of the constitution such as ‘express rights’.
The Parliament cannot change the constitution on its on accord.
States cannot legislate in areas of ‘exclusive powers’ restriction is imposed by section 109.
The High Court can declare legislation invalid if it is beyond its powers (ultra vires).
Resolve disputes
Primary role played by the courts is to resolve disputes by considering the facts of a case and applying the law to those facts therefore determining wether or not the party actions were unlawful or not.
Secondary role of the courts is to make law by either…
Establishing new rules/laws when there are none already legislated for a particular area (common law/court made law)
or
Interpreting the words in an ‘Act of Parliament’ then applying them to a case (statutory interpretation).
Precedent
The reason for the decision (ratio decidendi) establishes a principle of law that is followed by courts in future cases this is known as precedent.
Can either be binding (must be followed) or persuasive (influential).
Decisions made by higher courts are binding and MUST be followed by lower courts.
Statutory interpretation
The process undertaken by judges to apply the words of an ‘Act of Parliament’ to specific fact situations or cases.
*broad and general terms
Studded belt case, interpreted what a regulated weapon actually was it was found to be anything that’s primary purpose was to be used a a weapon but the belts primary
purpose was to hold pants up.
*Future circumstances
External affairs, the constitution needed to be clarified as more treaties were being introduced and created.
*Ambiguous wording
Davies V Waldren, being in charge of a motor vehicle while over the legal limit but what does being in charge actually mean in this situation as it has numerous different meanings.
*Changing nature of words
Kevin and Jennifer case, Kevin was born a woman but changed to a man, him and Jennifer wanted to get married but as marriage had to be between a man and a woman it was questioned.
Doctrine of precedent
Where the ratio decedendi (reason for the decision) of a case is used to influence future decisions.
Judicial conservatism
Judges can be conservative in nature meaning that they believe that law making is a responsibility of the parliament and not the courts.
Therefore they are unlikely to take opportunities to make law.
They may apply outdated precedent even if it is morally right to change it.
Judicial activism
Judges believe that it is their responsibility to develop common law in line with social change.
They are more likely to make law (Eddie Mabo case overturned precedent that was over 100 years old).
