syllabus points 6,7,8,11,12

Question 1

distinguish between statute and common law and regulations (also known as instruments and ordinances)

Answer 1

Which institutions make them (parliament v courts v executive)

• statute
  
  • parliament
• common
  
  • courts

The relationships between each type of law - which ones are superior, inferior and delegated

• statute
  
  • superior
• common
  

Question 2

I can draw detailed a flow chart of the legislative process used by the Commonwealth Parliament from ‘idea for a law’ to Royal Assent

Answer 2

drafting of a bill
first reading stage
second reading stage
committee stage
third reading stage
disagreement:
- If:
- the Senate rejects a Bill passed by the House of Representatives
- the Bill is reintroduced into and passed by the House of Representatives after 3 months
- the Senate again rejects the Bill
- then under s 57 of the Constitution the Governor-General may dissolve both houses of Parliament (double dissolution) and call an election.
- If the deadlock continues with the new Parliament, the Governor-General can convene a joint sitting of both houses.
- If the Bill receives a majority vote, it is presented to the Governor-General for assent.
royal assent
- After being passed by both Houses, the Bill is presented to the Governor-General (or Governor) for Royal Assent, whereupon it becomes an Act of Parliament.
date of operation
- The Act will commence:
- from the date specified in the Act or
- a date to be fixed by proclamation or
- if the Act is silent as to its commencement:
- from the date of Royal Assent (State Acts)
- 28 days after Royal Assent (Federal Acts).
- Parliament has the power to declare an Act to be retrospective, but this power is used sparingly.

Question 3

I can identify the main stages at which scrutiny and democratic input occur

Answer 3

committee stage and second reading

Question 4

I can identify and describe the differing roles of the House of Representatives and the Senate in the legislative process

Answer 4

house of representative introduce the bill, if it is passed my a majority vote it moves on to the senate to then be voted on again, if it receives a passing vote in the senate it is given to the governor general

Question 5

I can identify and explain the dominance of the executive over the legislative process in the House and how is can control the legislative process in the lower chamber.

Answer 5

PM is in executive, his party is the majority in the HoR

Question 6

I can explain why the Senate is an effective check against executive dominance of the entire legislative process

Answer 6

makeup of the senate may not be the same as the HOR.

Question 7

I can give at least one detailed example of a statute law being made by the legislative process (Case Studies S11)

Answer 7

religious discrimination act

Question 8

I can explain the role of committees in the legislative process.

Answer 8

Bills scrutinised by Parliamentary Committees at both Federal and State levels

Refers to a small group of members of Parliament, usually drawn from all parties in one or both of the houses, which examines, reports on, and makes recommendations about a particular issue or bill

Parliament establishes a committee of inquiry and outlines its specific purpose
Committees take place at Parliament House, but also travel all over Australia to discuss issues with many different people.

Committee advertises in newspapers and invites written submissions from the community, experts and interest groups regarding the issue.

Committee members read submissions, may invite selected people/groups to appear before the committee to provide further evidence or answer questions from committee members.

Once committee hearings finishes, committee writes a report and presents to Parliament.

Members of Parliament often use evidence from a committee report to propose/amend bills or make amendments to existing laws.

Question 9

I can draw a detailed & labelled diagram of the state and federal court hierarchies

Answer 9

.

Question 10

I can list the reasons why a court hierarchy is necessary

Answer 10

Providing a system of appeals;
Allowing for Specialisation;
Giving administrative convenience

Question 11

I can highlight relevant weaknesses of the court hierarchy

Answer 11

Can be confusing as to which court the case should be heard in
Duplication of administration increases costs
Too many appeals - people can appeal in an attempt to delay justice
Everyone should have access to the best judges

Question 12

I can define the terms ‘superior court’, intermediate court’ and ‘inferior court’

Answer 12

Superior courts can hear appeals (they have appellate jurisdiction) and make new precedents. This means they can create new common law

Intermediate courts too can hear appeals (they have appellate jurisdiction) and make new common law.

Inferior courts cannot hear appeals and cannot make new common law.

Question 13

I can classify each of the following courts using the terms defined above AND place them in the correct hierarchy (either federal or state) - High Court, Magistrates Court, District Court, WA Family Court, Federal Court, Federal Family Court, Supreme Court, Federal Magistrates Court

Answer 13

High Court: Federal
Magistrates Court: State
District Court: State
WA Family Court: State
Federal Court: Federal
Federal Family Court: Federal
Supreme Court: State
Federal Magistrates Court: Federal

Question 14

I can define the following Latin terms, ‘stare decisis’, ‘ratio decidendi’, &’obiter dicta’

Answer 14

Stare Decisis - literally means to stand by what has been decided; the process of lower courts following the decision of higher courts.

Ratio Decidendi (ratio for short) - is the reason for the decision which is given in the judgment. The ratio is the binding part of the decision. A judgement is the statement read out by the judge at the end of the appeal hearing.

Obiter dictum - A judge’s statement of opinion or observation made during a judgement but not part of the reason for a decision.

Question 15

I can define and distinguish ‘binding precedent’ and ‘persuasive precedent’

Answer 15

binding precedent is a legal principle established in a higher court that must be followed by lower courts in the same hierarchy when deciding similar or ‘like’ cases.
eg. in Western Australia a judge of the District Court must follow the decisions of judges in the Supreme Court.

persuasive precedents are not binding on courts. They are seen more as ‘convincing’ argument, but one that does not have to be followed because it is not binding.

Question 16

I can describe the Doctrine of Precedent using all relevant terms

Answer 16

The doctrine of precedent is a fundamental constraint on judicial decision-making in Australia. The general idea behind the doctrine of precedent is that judges, when they are deciding cases, must pay proper respect to past judicial decisions.

Question 17

I can explain how judges may create new common law by avoiding existing precedent

Answer 17

1. Reversing
   - Reversing the decision of a lower court by a higher court
   - Higher court hears a case on appeal
   - Decides that lower court had wrongly decided the case
   - Ratio decidendi of lower court is no longer valid
   - Replaced by the ratio decidendi of the higher court
2. Overruling
   - A higher court in a different, later case overturns a legal principle laid down by a lower court.
   - Higher court decides not to follow the decision of a lower court in a previous case.
   - Case may come before a higher court that relies on a legal principle that has been formed in an earlier case decided in a lower court.
   - Judge presiding in the higher court may believe that the earlier case has been wrongly decided and the higher court would not follow the precedent set by the lower court.
3. Disapproving
   - Court at same level not bound by each other’s decision
   - Judge in a court refuses to follow an earlier decision of another judge at the same level
   - May be because the judge’s opinion of the law differs from that of the previous judge
   - May result in an appeal to a higher court to determine what the law should be.
4. Distinguishing
   - Courts are bound only by decisions of higher courts in similar cases
   - when facts of a case are sufficiently different from a previous case, decision in previous case will not be considered binding.
   - Judge needs to be satisfied that the facts of a case are sufficiently different , that an injustice would result from the application of the earlier precedent.
   - Judge may decide the case by formulating a new precedent
   - This allows for continued development of the case of the common law to meet new situations.

Question 18

I can use detailed examples of the common law developing over time in response to changing values or the discovery of gaps in the law - S12

Answer 18

Mabo, Wik, Native Title Amendment Act, Thoms & Love