parliament and courts Flashcards
factors that affect the ability of parliament to make law
the roles of the houses of parliament
the representative nature of parliament
political pressures
restrictions on the law making powers of parliament
the role of the houses of parliament in law making
STRENGTHS
as bills need to be passed by both houses, it ensures there is great opportunity to review any bill and suggest amendments
because bills have to be passed by both houses it ensures there is debate any any flaws can be pointed out to be fixed
parliament can change law quickly if necessary, particularly if government has majority in both houses
WEAKNESSES
because a bill has to be passed through both houses it can mean the process is longer then necessary
parliament inly sits for a certain number of days, so laws must be made during this time, which slows the legislation process
it is restricted in that it can only pass laws that are presented to it, usually by the government of the day
the role of the representative nature of parliament in law making
representative government means that parliament and government consists of members elected by the people to make laws on their behalf.
STRENGTHS
ensures that law reform is in the publics interest
WEAKNESSES
at times politicians may support preposed laws as they are popular, rather then less popular alternatives
the role of political pressures in law making
individual members of parliament feel the need to remain popular with voters to maximise their chances of re-election. they may also feel pressure to vote in a particular way on new laws from this pressure. for a fear of loosing popularity with voters the politicians are likely to respond to political pressures when implementing law reform.
the role of the restrictions on the law making powers of parliament in law making
parliament can only make laws in areas with its jurisdiction. law making powers not granted to the commonwealth are called residual powers and belong solely to the states, they include public transport and criminal law. the commonwealth can only make laws in these areas of powers if they are referred to them by the states or the constitution has changed. state parliament can also not make laws in areas of executive power as only the commonwealth can legislate in that area, they include military force and currency.
the role of the victorian court and the high court in law making
the main role of the courts is to settle disputes but they can make law in some circumstances. judges in superior courts are sometimes able to make law when settling cases. judges can only make law when the court resolves a dispute for which there is no existing statute or common law in place. a precedent is the reason behind a courts decision, it establishes the rule that must be followed by the lower courts in the same hierarchy in future cases that are similar. there are those precedents that have been made by higher courts and must be followed by lower courts in the same hierarchy, this can only be binding if the facts are similar. there are those that are not binding on a court as they are considered to influence a decision which can also be created from a lower court in another hierarchy.
reasons for statutory interpretation
problems as a result of the drafting process
- an act not taking into account the future circumstances
- act might not be clearly expressed
- may not cover new types of technology
problems applying the act to a court case
- an act becoming out of date
- the meaning of the words can change over time
- most legislation being drafted in general terms
effects of statutory interpretation
1
factors that affect the ability of courts to make law
the doctrine of precedent judicial conservatism judicial activism costs and time in bringing a case to court the requirement for a standing
the role of the doctrine of precedent in law making
STRENGTHS
the principle of stare decisis ensures consistency in common law as the lower courts must follow precedents set out by superior courts in cases with similar material precedents.
the principle of stare decisis can ensure predictability in common law because parties can anticipate how the law is likely to be applied to resolve their dispute by examining past cases.
common law is flexible because judges in superior courts can overrule and reverse precedents and lower courts can avoid them through distinguishing material facts.
WEAKNESSES
lower courts must follow a binding precedent even though they may consider it to be outdated or inappropriate.
given the large amount of precedents in existence, and the different judgements in the same case, the process of identifying the relevant precedent can be time consuming and costly for the parties.
judges can only interpret legislation when an appropriate case is brought before the court, which is generally reliant on parties being willing to pursue their dispute through the appeal process.
the role of judicial conservatism in law making
STRENGTHS
helps to maintain stability in law
lessons the possibility of appeals on a question of law
allows parliament to make more significant and controversial changes in law
WEAKNESSES
restricts the ability of the courts to make major changes and controversial changes in law
can discourage judges from considering a range of social and political factors when making law
the role of judicial activism in law making
STRENGTHS
considers a range of social and political factors when interpreting acts of parliament
willingness of judges to consider community values and the rights of people when making decisions
WEAKNESSES
it allows judges to change the meaning of laws due to the intention of parliament which created those laws
also judges are not elected by the people, so it could be argued that they do not reflect the communities values
the role of costs and time in bringing a case to court in law making
COSTS
it is very expensive to take a case to court and this can deter people from using the courts to settle disputes
legal representation: maximises chance of winning the case, they research the case, collect and analyse evidence, interview witnesses and present arguments
court costs: filing fees, jury costs, actions in the Supreme Court cam be thousands of dollars each day
TIME
one a dispute is taken to the courts it will be resolves. the process is normally quicker then passing legislation, though complex cases can take several months to prepare and hear.
the role of the requirement for a standing in law making
1
features of the relationship between courts and parliaments in law making
the supremacy of parliament the ability of courts to influence parliament the interpretation of statutes by courts the codification of common law the abrogation of common law
