SAC 4

Question 1

Factors that affect the ability of parliament to make law-

Answer 1

1- the roles of the houses of parliament
2- the representative nature of parliament
3- political pressures
4- restrictions on law-making powers

Question 2

The roles of the houses of parliament

- The composition of the lower house:

Answer 2

Majority government- the political party or coalition that holds the majority of seats in the lower house forms government. If government holds the majority of seats in the lower house, and bills introduced by the govt will usually be passed to the upper house. As such, the govt has the power to introduce ant bills it likes. However, this creates a rubber stamp situation and bills may not adequately be debated in the upper house. Additionally, enables the govt to reject bills introduced by a private member without debate. Minority government- where no major political party wins a majority of seats in the lower house, therefore the major parties seek support of minor political parties/independents to form a majority government. This ensures bills are thoroughly debated in the lower house (advantage), however must constantly negotiate with minor parties/independents to ensure legislative program is supported- this may lead to the govt altering its original policies (frustration for voter)

Question 3

The roles of the houses of parliament

- The composition of the upper house:

Answer 3

Government majority: bills will inevitably be passed therefore allowing the govt to implement its legislature program. However, the upper house may become a rubber stamp meaning bills are passed with less scrutiny therefore failing to adequately fulfil its role or represent the states/regions.
Hostile upper house: govt does not hold majority in upper house so may face difficulties implementing legislative agenda, bills may be obstructed (advantage = bills are scrutinized) Balance of power- a situation where no single party has a majority of seats in one or both houses, meaning members of the cross bench (minority parties or independents) may be able to vote together to reject government bills. (adv- diverse UH so wider range of views; disadv- small groups may have disproportionate high level of power compared to voter base + don’t rep values of majority of community)

Question 4

The roles of the houses of parliament

STRENGTHS

Answer 4

Bills must be passed by both houses- scrutinized
Each house engages in debate = wide range of views are proposed
Parl can change laws quickly if need be especially if govt holds majority in both houses

Question 5

The roles of the houses of parliament

WEAKNESSES

Answer 5

Need to go though both houses may slow progress of legislature reform
Parl only sits for a limited number of days = slow legislative process
Parl is restricted in law-making ability as can only pass laws presented to it
Hostile upper house= obstruct ability of govt to implement its policy agenda

Question 6

what is a representative government?

Answer 6

parliament and government consist of members who are elected by the people to make laws on their behalf. If these members fail to make laws that reflect the views, values and needs of the people they will jeopardise their chance of being re-elected

Question 7

THE REPRESENTATIVE NATURE OF PARLIAMENT:

- views of the majority

Answer 7

Assist: encourages MPs to listen to the views of the community to make laws accordingly / public can sign a petition, engage in demonstration, use social media or contact their local MP to express their view and indicate the need for law reform
Detract: in attempt to be re-elected, MPs may introduce laws which are popular with voters rather than those that are necessary and in benefit of the country’s future / MPs may be reluctant to initiate law reform in areas where there is highly vocal groups of people who don’t support the change / community opinion can appear divided on controversial issues making it difficult for MPs to assess the views of the majority

Question 8

THE REPRESENTATIVE NATURE OF PARLIAMENT

- regular elections

Answer 8

Assist: to achieve representative government, regular elections must be held so the people can vote for politicians to represent them in parliament + voting is compulsory so views of all of society considered / if the govt does not represent the needs of the people during its term in office, it is likely to be voted out at the next election
Detract: due to compulsory voting, people may be ill informed choices which undermines principle of representative government / fixed terms therefore government may be reluctant to implement long term reforms.

Question 9

Domestic political pressures

Answer 9

individuals, businesses, organisations and pressure groups have the opportunity to influence MPs through putting pressure on parliament to implement law reform which supports their cause. However, excessive pressure on MPs can obstruct law reform.

Question 10

Internal political pressures

Answer 10

MPs belonging to a political party are generally expected to vote on party lines (according to their party’s views/agenda), however sometimes MPs disagree with their parties stance yet feel compelled to vote on party lines. Internal political party disputes over party policy and leadership can distract the govt from its law-making responsibilities.

Question 11

International political pressures

Answer 11

MPs and govts can be influences by international organisations (e.g. UN) and multinational corporations. Australia is a signatory to many international treaties, therefore having ratified these the govt may be subject to international political pressure if it failed to uphold its obligations. Cth govt may be subject to pressure from trade partners and defence allies, as well as global events.

Question 12

• Jurisdictional limitations on law-making of parliament

Answer 12

The commonwealth parliament can only make laws within its constitutional law-making powers, while state parliaments can only make law in areas of residual power. The cth Parl cannot make laws in areas of residual power unless they are given the power to do so e.g. high court interpretation of the constitution; states handing power the Cth; referendum; external affairs power
The validity of a law can be challenged if it is believed they have made law outside its law-making powers.
While parliament is the supreme law-making body, with the ability to override common law, it cannot override a decision of the High Court if it declares a law to have been made ultra vires (beyond its law-making power)

Question 13

• Specific prohibitions on parliament in law-making

Answer 13

The constitution also specifically restricts the law-making of the Cth and state parls by: banning state parliaments from making laws in areas of exclusive power / banning Cth from encroaching express rights / constitution can only be changed via referendum

Question 14

When do courts make law?

Answer 14

Judges in superior courts (Supreme Courts and High Court) can sometimes make law when deciding cases before them. This is known as common law. They can only do so when:

• The courts resolves a dispute with no existing statute that can be applied to resolve it
• The court resolves a dispute in which there is an existing stature but the statute requires interpretation so it can be applied (statutory interpretation)

Question 15

How do courts make law?

Answer 15

The Doctrine of Precedent- the common law principle by which the reasons of higher courts are binding on courts ranked lower in the same hierarchy in cases where similar material facts exist. This creates consistency and predictability. Only superior courts are able to set precedent.

Question 16

Stare decisis-

Answer 16

another way to describe to process of the lower courts following the reasons for the decisions of the higher courts

Question 17

Ratio decidendi-

Answer 17

the legal reasoning behind the decision

Question 18

Binding precedents

Answer 18

a precedent that has been established in the superior courts and must be followed by lower courts in the same hierarchy when resolving disputes with similar material facts

Question 19

Persuasive precedents

Answer 19

precedents that are not binding on a court but may stoll be considered by a judge and used to influence their decision if it is relevant to the case. These may be set by a court in a different court hierarchy, by lower courts or by courts in the same standing within the same court hierarchy. – e.g. Donoghue v Stevenson (1932) which was used in the Grant v Australian Knitting Mills Ltd (1932)

Question 20

Obiter dictum

Answer 20

“thing said by the way”, this refers to statements made by a judge in their judgement that are not actually part of the reason for the decision (therefore they are not binding), but are still important and may be considered persuasive in future similar cases in the same or different court hierarchies.

Question 21

Reversing precedent

Answer 21

when hearing a case on appeal from a lower court, a judge in a superior court may disagree with and decide to change this previously established precedent set by the lower courts. This establishes a new precedent

Question 22

Overruling precedent

Answer 22

a judge in a superior court may decide not to follow a previously established precedent set by a lower court in a different and earlier case. This occurs in a different and later case. New precedent will be established in doing so

Question 23

Disapproving a precedent

Answer 23

judges and magistrates in lower courts who are bound to follow precedent may express their dissatisfaction with the precedent. This statement of dissatisfaction does not allow them to avoid following the precedent. However, may be used on appeal to indicate original judge’s disapproval or to encourage parliament to change the law.

Question 24

Distinguishing a precedent

Answer 24

a judge may be able to avoid following an existing precedent if they can find a difference in the material facts of the case they are deciding and the material facts of the case in which the precedent was established.

Question 25

Statutory interpretation

Answer 25

Judges have the ability to make law when interpreting the meaning of a statute. This occurs when there is a dispute over the meaning of words/phrases contained in the statute, and the case brought before the court to be resolves. Judges can also broaden or narrow its meaning. If this occurs in a superior court, this interpretation forms a precedent to be followed in future similar cases.

Question 26

Reasons for statutory interpretation:

Answer 26

1) Resolving problems as a result of the drafting process

2) Resolving problems applying the Act to a court case

Question 27

The effects of statutory interpretation

Answer 27

• Words or phrases in disputed statutes are given meaning
• The decision reached is binding on the parties in the case
• Precedents are set for future cases (if it is set in a superior court) – the reason for the interpretation of the words/phrases forms a precedent which is then read together with the statute o determine future cases.
• The meaning of the legislation can be restricted or expanded – if a court interprets a word/phrase narrowly, this could restrict the scope of the law. (E.g. Deing v Tarola the court restricted the definition of a regulated weapon to items likely to be used for an offensive purpose). If they interpret a word broadly, this can extend the meaning of the law to cover a wider range of circumstances or a new area of law.

Question 28

what are the factors that affect the ability of the courts to make law:

Answer 28

• the doctrine of precedent
  -judicial conservatism
  -judicial activism
  -cost
  -time
  -standing
  -

Question 29

1) The Doctrine of Precedents

Assisting courts ability to make law:

Answer 29

• principle of stare decisis ensures consistency and predictability
• judges are given guidance as they can refer back to previous cases and decide accordingly
• decisions made by more experienced judges in higher courts are followed in lower courts
• same point is not being decided on over and over again
• common law is flexible because judges in superior courts can overrule and reverse precedents and lower courts can avoid them through distinguishing

Question 30

1) The Doctrine of Precedents

Limiting courts ability to make law:

Answer 30

• the difficulty and cost associated with locating relevant proceedings
• lower courts must follow a binding precendent even thought they may conside it outdated or inappropriate
• superior court judges may be reluctant to change (revers/overrule) an existing precendent, preferring parliament to change the law
• judges can only establish precedents when an appropriate case is brought before a superior court
• court can only clarify the meaning of legislation after a dispute over its meaning has arisen
• with the exception of High Court decisions on constitutional matters, parliament can always legislate to abrogate (ccancel) common law.

Question 31

what is judicial conservatism?

Answer 31

An expression used when judges adopt a narrow interpretation of the law when interpreting Acts and deciding cases. This results in judges avoiding major or controversial changes in law. Judicial conservatism impacts the ability of courts to make law, because judges who take a conservative approach to the way their interpretation of statutes will not go very far beyond the established law.

Question 32

how does judicial conservatism assist courts ability to make laws?

Answer 32

• Helps maintain stability in the law because judges are cautious and show restraint when making decisions that could lead to significant changes in the law
• Lessens the possibility of appeals on a question of law

Question 33

how does judicial activism limit courts ability to make laws?

Answer 33

• Restricts ability of courts to make major and controversial changes in law
• Can discourage judges from considering a range of social and political factors making law
• May be seen by some as not being progressive enough and not factoring in current day values when deciding cases.

Question 34

what is judicial activism

Answer 34

Refers to the willingness of judges to consider a range of social and political factors, including community values and the individual rights, when interpreting the law and making decisions. Judicial activism is controversial. While some see it as judge overstepping their role as independent law-makers, others view it as a legitimate obligation of judges to ensure justice is done

Question 35

how does judicial activism assist courts ability to make laws?

Answer 35

• Allows judges to broadly interpret statutes in a way that recognises the rights of people
• Allows judges to consider range of social and political factors and community views when making a decision, which may lead to more fair judgements
• Allows judges to more creative when making decisions and making significant legal change (e.g. Mabo case)

Question 36

how does judicial activism limit courts ability to make laws?

Answer 36

• Can lead to more appeals on question of law

- Can lead to courts making more radical changes in the law that may not necessarily reflect community values.

Question 37

how do costs assist courts ability to make law?

Answer 37

• Courts are able to manage disputes so the issues in dispute are narrowed, possibly saving parties’ costs
• High costs may mean only legitimate claims are pursued all the way through appeal courts

Question 38

how do costs limit a courts ability to make law?

Answer 38

• High costs can deter litigants who cannot afford these costs and do not qualify for legal aid, from pursuing their case in court (e.g. legal rep and court fees – standard application for leave to appeal to the SC COA = $2257 with hearing fees of $835.30)
• High costs can deter parties from pursuing the appeals process

Question 39

how does time assist a courts ability to make law?

Answer 39

• Courts can make law relatively quick once dispute has been brought before them
• Courts are not required to follow lengthy processes compared to those involved in the process of drafting and passing a bill through parliament

Question 40

how does time limit a courts ability to make law?

Answer 40

• Some courts, especially appeal courts, can take months to hear and determine complex cases
• Parties can be delayed in getting a case ready for trial

Question 41

how does the requirement of standing assist a courts ability to make law?

Answer 41

• Ensures cases are only brought to court by people who are genuinely affected by an issue or matter rather than wasting valuable court time and resources by listening to people who are not affected by a matter

Question 42

how does the requirement of standing limit a courts ability to make law?

Answer 42

• Means that people who have a general interest in a case have no right to pursue a legal challenge
• Means that potential improvements to the law that could have been made by those with only intellectual interest the cases are lost

Question 43

The relationship between courts and parliament in law-making:
1) The supremacy of parliament-

Answer 43

Parliament is the supreme law-making body with the ability to make and change any law within its constitutional power. It has the power to confirm or override common law decisions made through the courts (with the exception of High Court decisions on constitutional matters). Parliament is responsible for passing law that establish the courts and there jurisdiction (e.g. The Victorian Parliament passed the Supreme Court). Parliament can pass laws to change jurisdiction of the courts (e.g. the Magistrates Court Act has been amended to create divisions like the Koori Court. Parliament can pass laws restricting courts’ ability to make decisions with respect to matters (e.g. courts are restricted in the maximum sentences prescribed by legislation).

Question 44

The relationship between courts and parliament in law-making:
2) The ability of courts to influence parliament

Answer 44

Courts can indirectly influence parliament to make and change the law. Courts may make comments when handing down judgements (either as ratio decidendi or obiter dictum), that inspire parliament to initiate law reform. Parliament can also be influenced to change law if; a court is bound by previous precedent and makes a decision that creates an injustice; a court acts with judicial conservatism and is unwilling to overrule or revers a precedent. A court’s decision may highlight a problem or cause public outrage that can lead to parliament changing law (e.g. one-punch law: mandatory 10 years of imprisonment) Judicial activism can also influence parliament to change the law (e.g. Mabo- following HC decision, the CTH Parl passed the Native Title Act).

Question 45

The relationship between courts and parliament in law-making:
3) The interpretation of statutes by courts

Answer 45

Courts can give meaning to words/phrases in statutes (statutory interpretation). Courts can also interpret the meaning of secondary legislation (ruled and regulations made by secondary authorities e.g. councils or govt departments) so it can be applied to resolves disputes. In doing so, judges not only clarify legislation, they can also broaden or narrow its meaning- this establishes precedents, which together with the Act of Parliament, forms part of the law. The High Court has the jurisdiction to interpret the meaning of words/phrases in the Constitution. It can therefore alter the division of power between the Commonwealth and state parliaments.

Question 46

The relationship between courts and parliament in law-making:
4) The codification of common law

Answer 46

As parliament is the supreme law making body, they can make law that confirms a precedent set by the courts. This is referred to as codification of common law. This involves the parliament passing legislation that reinforces or endorse the precedent established by court. E.g. the Commonwealth Parliament codified the precedent established in the Mabo case by passing the Native Title Act. Parliament will often codify common law in order to ensure a future court does not change the law, or to clarify areas of the law that were not covered by the precedent.

Question 47

The relationship between courts and parliament in law-making:
5) The abrogation of common law

Answer 47

Parliament has the power to abrogate (override) decisions made by courts (common law), with the exception of High Court decisions made on constitutional matters. This may be necessary in situations where the Parliament believes the courts have interpreted the meanings of the words/phrases in a statute in a way that was not the intention of parliament, or in a way that does not reflect the current meaning of the Act.