role of the courts and parliament Flashcards
Outline one limitations on parliament in changing the law
the detailed process of passing a bill through both houses involves three reading stages and an optional committee stage in each house. this means that bills will take a long time to be passed.
Distinguish between parliament and government
parliament is the supreme law making body comprising of elected members in both houses parliament, upper and lower. the members may belong to a party or be independent. however, government refers to the party with the majority of elected representatives in the lower house.
Explain how the referendum process is a restriction on parliaments ability to make laws
the referendum process is a restriction on parliaments ability to make laws as the referendum is the process of changing the wording of the constitution. the criteria for a successful referendum require a majority of ‘yes’ voters throughout Australia and a majority of ‘yes’ votes in the majority of states. to change the law-making powers of parliament requires a referendum, but it is difficult to attain the criteria for success as only eight out of 44 referendums have been successful.
Explain the extent to which the high court is a restriction on the commonwealth parliaments law making ability
the high court is the guardian of the constitution, it is able to interpret the constitution and apply it to disputes that come before it. to change the law making powers of parliament a case needs to come before the high court. a person or body with standing will need to challenge an existing law, this person must be sufficiently affect or harmed by the law. a high court interpretation cannot be overruled by parliament even though parliament is the supreme law making body.
What is the doctrine of precedent?
Explain one reason why courts may need to create a precedent
where no law exists, superior courts can establish a new legal principle that is binding on the lower courts in the same hierarchy on matters with similar facts. this is based on the principle of stare decisis and it is the ratio decendi that forms the binding precedent. courts may need to create a precedent if a new issue has arisen in the dispute before the, that is not covered by a current law.
What is statutory interpretation?
Explain one reason why courts may need to interpret a statute
statutory interpretation is the process by which judges presiding in a dispute must interpret the words or phrases of an act. the interpretation is then applied to a dispute before them. this interpretation can form a binding precedent on the lower courts in the same hierarchy in matters of the same facts. a reason why courts ay need to interpret a statute is where parliament may have used broad terminology to allow courts to interpret in future changing circumstances.
Explain two effects of statutory interpretation
the words and phrases of an act are given meaning which allows them to be able to be applied. it can also extend a law by providing a broad interpretation.
To what extent are judges limited in their ability to make law?
if legislation exists that relies on the specific area of law in a dispute, courts must follow that legislation even if it is outdated. if a precedent has been created in a superior court with the current dispute the court must follow that precedent. however, a judge in a superior court hearing a case on appeal can reverse a decision made in a lower court. a superior court can also overrule a precedent established in a lower court, creating a new precedent that is binding on lower courts in the same hierarchy.
Other then statutory interpretation, explain two other features of the relationship between parliament and the courts
parliament passes acts that create the courts and their jurisdictions. the courts can then apply the law created by parliament.
