strengths & weaknesses Flashcards
What does a hostile upper house allow for (strengths) ?
It allows for more thorough debate and scrutiny of bills.
A diverse Upper House can be seen as an opportunity for a more effective parliament and more effective law making. The government may be forced to consider wider range of views and in the process better reflect community interests.
What does a hostile upper house limit?
It can also prevent or obstruct the ability of the government to implement Law Reform and can allow a small group of independent numbers or members of a minor party to hold a disproportionately high level of power compared to the size of their voter base.
It also brings the question whether these parties who hold the balance of power can represent the views and values of the broader community as they may focus on a relatively narrow range of policy issues.
Drawbacks of rubber stamp upper house
This allows the government to introduce whatever bills it likes and implement all its legislative program which can prevent the upper house from adequately fulfilling its role as a house of review or representing the broader interest of the community. Also enables gov to reject bills introduced by private member.
Strength of willingness to act in accordance with the views of the majority
- The fact that our parliament and government is representative of the people means that these activities can often be influential in promoting law reform.
Weakness of willingness to act in accordance with the views of the majority
- However, members of parliament may introduce and support laws that are popular with voters rather than passing laws that may be necessary, but are unpopular with voters.
- eg. govs may introduce popular laws to win votes (promoting tax cuts to win support of voters without regard of whats best for the country)
- can be difficult to accurately predict future views and needs of Community and make laws to provide for them
Strengths of the high court’s ability to protect rep. gov
- Judges are independent of the executive and the legislature, and decisions are based on appropriate legal principles rather than political pressure. The Court can seek to uphold processes that promote representative government, even if they are contrary to the will of the parliament (e.g. where parliament is seeking to restrict who can vote).
- The existence of the High Court allows individuals who have an interest in the case to bring the matter to court and have a law overturned. This reinforces that members of parliament are not above the law and the judges are able to overturn laws, including those that do not uphold the principle of representative government.
- The judges of the High Court are experienced in making decisions and have available to them a wide range of legal resources, ensuring that decisions are appropriate
- Both the High Court and the principle of representative government are contained in the Constitution and therefore can only be abolished if there is a referendum.
Weaknesses of the high court’s ability to protect rep. gov
- Judges can only rule on the facts of the case that is brought before them. They cannot create general principles of law outside the immediate case, which limits the Court’s ability to protect the principle of representative government more broadly if the case does not address issues relating to that principle.
- High Court judges cannot protect the principle of representative government unless a case is brought before them. Such cases are often complex and expensive for the ordinary person, and standing is required. Unless cases are brought, a law that does not uphold representative government may remain.
- The decision of the High Court may depend on the composition of the Court. Some justices are more conservative in their approach to the Constitution and may be reluctant to adopt a liberal approach to interpreting the Constitution.
- The interpretation of the scope of the principle, such as the ability of people to vote in elections and the extent of the freedom of political communication, could be subject to further change if a future High Court interprets the Constitution differently.
Strengths of the separation of powers
- While parliament is the supreme law-making body, the judiciary (courts) have the power to invalidate, strike down or declare void a statute that has been passed by parliament beyond its law-making power.
- The judiciary is independent of the legislature and executive. This independence is vital, especially when the Commonwealth is a party in a case before the Court. It also ensures a decision about the application of law can be made without the fear of electoral backlash as judges are not aligned with political parties.
- Despite the overlap between the executive and legislative branches of government, there are still some measures in place to ensure the executive is independent from the legislature. For example, certain government employees at a Commonwealth level cannot be members of parliament, thus avoiding executive influence and power over parliament in law-making.
- The separation of powers is specifically provided for in the Australian Constitution, and therefore cannot be abolished without a referendum.
Weaknesses of the separation of powers
- In reality, the legislative power and the executive power are combined. This can decrease the ability of the separation of powers to act as an ongoing check. The power to administer the law through government departments is carried out by ministers (members of Cabinet), who are drawn from the executive.
- Judges are appointed by the executive.
This may result in the perception that the executive seeks to influence judicial benches. The government can choose which judges they want to serve on the Court and some people believe that these choices are influenced by their progressive or conservative views. - The ability of the judiciary to act as a check on parliament is dependent on people’s willingness to challenge laws. That is, the courts can only act as a check on parliament when there is a case before them, and that requires someone willing and able to initiate such a case.
- The separation of powers in the Australian Constitution does not extend to states, although the states separately provide for separation of powers in state constitutions or statutes.
Strengths of express protection of rights
- Express rights impose limits on parliament when making law in certain areas.
- Express rights are entrenched and cannot be removed or amended without a successful referendum.
- When a matter is brought before it, the High Court can act swiftly in declaring a law to be beyond parliament’s power (ultra vires) and thus invalid.
- The High Court is independent and will make decisions protecting the express rights even if they are contrary to the views or preferences of governments.
Weaknesses of express protection of rights
- The rights that are protected are limited in scope.
- Given referendums are so difficult to pass, the express rights in the Constitution have not increased in number or been amended since Federation. This reduces the checks on government because there is unlikely to be any additional rights added to act as a check on parliament in the future.
- For the High Court to hear a challenge against actions of parliament regarding express rights, a case must be brought to court (and this is expensive and time-consuming).
- The express protection of rights does not prevent the Commonwealth Parliament from passing the law.
How does the doctrine of precedent create consistency and predictability?
- A party that takes a case to court can look at past cases and anticipate how the law may apply to their situation. which gives them some idea of the outcome, because similar cases are decided in a similar manner.
- Legal representatives can then give advice to their clients on how a court may decide their case, as there may be similar cases with similar facts where a court has ruled a particular way.
Limitations to how the doctrine of precedent creates consistency and predictability?
- Difficulty and cost in locating relevant precedents
- the difficulty in identifying the legal reasoning behind a decision (ratio decidendi)
- the difficulty in predicting future developments.
How does the doctrine of precedent create flexibility?
- Through the process of reversing, overruling, distinguishing and disapproving, precedents change and develop over time to allow the gradual expansion of common law.
- Judges may also interpret the meaning of the words and phrases used in past precedents and refine the law and make it clearer as they apply a precedent to a new case.
Limitations to the doctrine of precedent creating flexibility?
- restricts the ability of the lower courts to change the law in cases where they are bound to follow a previous precedent established by a higher court.
- Judges in superior courts may be reluctant to reverse or overrule existing precedents.
- While not being technically bound by their own court’s previous decisions, judges in courts of the same standing consider these precedents to be highly persuasive and rarely overrule them. (except for High Ct.)
