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Legal exam > Legislation > Flashcards

Legislation Flashcards

1
Q

Remedial legislation

A

This is legislation that overrides case law created by a superior court because parliament believes it is a bad law.

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2
Q

Complementary Legislation

A

Legislation passed to codify a legal rule created by a court so that it can be uniformly applied.

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3
Q

Public bill (Ordinary Bill)

A

Proposes a new law

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4
Q

Public Bill (Supply bill)

A

Budget and taxation bill

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5
Q

Methods of voting

A
  • According to party lines

- Conscience vote

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6
Q

Voting procedures

A

On the voice

Formal vote

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7
Q

Deadlock

A

-A parliamentary deadlock, as defined in section 57 of the constitution, occurs when the House of Representatives passes a bill twice and it is rejected twice in the senate after three months between each rejection.

  • A deadlock will occur when the government does not control the majority of seats in the senate.
  • The minority parties and independents who hold the balance of power, form an alliance with the opposition to reject government bills

(Goth Whitlam)

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8
Q

Three ways to resolve a disagreement/deadlock

A
  • Amendments or abandonment
  • Double dissolution
  • GG calls for dismissal
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9
Q

Constitutional trigger

A

the treat of DD can be used as a threat to the senate (Pass or face election)

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10
Q

How is legislation supervised by parliament

A
  • The upper house scrutinises bills passed through the lower house (Bicameral scrutiny)
  • Ministers are accountable to parliament through question time and debates
  • The committee structure of parliament allows for reporting on effectiveness of legislation
  • Legislation may be given a sunset clause
    Members of the public may petition their local member
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11
Q

How is legislation supervised by executive

A
  • The cabinet conduct investigations and committees of inquiry
  • Royal commissions
  • Transparency as public can access records held by government departments as per the freedom of information act (1991).
  • Ombudsman
    Responsible government.
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12
Q

How is legislation supervised by

A
  • Independent of the 2 arms
  • Judicial review
  • Appeals
  • Inconsistency rule
  • Statutory interpretation
    Judges may be called upon to sit on a royal commission to investigate legislations effectiveness.
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13
Q

Delegated legislation

A
  • Parliament delegates law-making power for a range of reasons and to a variety of delegated authorities.
  • Some reasons include:
  • Workload
  • Legislative complexity/expertise
  • Regulations can be made quicker
  • More efficient
  • A way to get around the upper house
  • Can be made for special local conditions
  • allows for community participation.
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14
Q

Stages of delegated legislation

A 
Consultation 
Drafting 
Approval
Proclamation 
Tabling and gazzettal
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15
Q

How is delegated legislation supervised by parliament

A
  • Both state and federal parliaments pass legislation that sets the powers and processes of delegated bodies
  • Senate standing committee
  • The regulatory powers can be revoked or limited by parliament
    Question time
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16
Q

How is delegated legislation supervised by government

A
  • Cabinet reviews the regulations
  • The executive council reviews and approve regulations
  • Committees can be set up
    Ombudsman.
17
Q

How is delegated legislation supervised by the judiciary

A
  • Judges may declare regulation ultra vires
  • Judicial review
  • Statutory interpretation
    Rule of law and natural justice.
18
Q

Case Law

A
  • Case law is the body of law that developed from the judgements and procedures of court and is the base of law in Australia.
  • Case law is a consequence of individual legal disputes. It develops in two ways
    by the creation and extension of common law principles where no statutory rule exists and by statutory interpretation.
19
Q

How does the court depart from precedent

A
    • Reversal – an appellate court changes decision in appeal
  • Overruling – A superior court can overrule precedent
  • Distinguishing – the facts of the case differ
  • Disapproval – A court of equal standing deems the precedent unfavourable.
20
Q

Why is case law made

A
  • To provide resolution of dispute where no statute covers and no precedent exists
  • To give meaning to statutes.
21
Q

Weaknesses of case law

A
  • Not democratically elected
  • Judicial decisions may be overtaken by P law.
    Courts can only respond to matters brought before them
22
Q

Strengths of weaknesses

A
  • Developed independent of political pressure
  • Precedent provides consistency
    Made in accordance to the ROL and natural justice
23
Q

Supervision of case law by parliament

A
  • Can override judge made law
  • May decide to codify
  • Prescribe the way courts operate (Evidence Act)
    Parliament can dismiss judges under section 72
24
Q

Supervision of case law by executive

A
  • Provides funding to court and can cut or fund new courts

May recommend the dismissal of a judge

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