The People, Parliament and the Courts Flashcards
(44 cards)
Who represents the Crown at state and commonwealth levels?
Governor General represents crown for commonwealth parliament, Governor represents crown for state parliaments.
What is the role of the Governor General in law making?
Grants/ withholds royal assent to bill that have passed both houses of Commonwealth parliament.
What is the role of the Governor in law making?
The Governor gives royal assent to bills that pass both houses of state parliament. Does not have the authority to deny royal assent.
List all the courts in the Victorian court hierarchy from lowest to highest.
Magistrates, county, supreme trail division, supreme court of appeals, high court.
Define Supremacy of the Parliament.
Parliament is the supreme law making body, able to override decisions of all other at any time expect the high courts decisions in interpretation of the constitution.
Define codification of common law.
Commonwealth parliament confirms precedents/ common law set by the courts in a piece of legislation.
Define statutory interpretation.
The process by which the court gives meaning to words or phrases in acts of parliament. If done in a higher court setting a precedent for this particular interpretation that is binding on all lower courts in the same hierarchy.
Define common law.
Judge made law. Law made by precedents set in higher courts that are binding on lower courts in the same hierarchy.
Define abrogation of common law.
Commonwealth parliament repeals precedents/ common law set by courts in a piece of legislation.
Define Representative Government.
Parliament and the government make laws on behalf of the people who elect them.
Outline three features of a representative parliament.
Elected at regular intervals by the people. Represents the views of the majority. If the members fail to accurately represent the majority, then they are not re elected to serve another term.
Define doctrine of precedent.
A system used by courts to make sure that similar cases are dealt with in a similar way forming a common law. Ensuring fairness and consistency.
Outline and describe the different types of precedents.
Binding precedents. These are set by higher courts in the same court hierarchy and lower courts in that hierarchy are bound to follow them when resolving cases with similar facts.
Persuasive precedents. These are precedents made in another court hierarchy, lower courts in the same hierarchy, foreign courts, etc. Judges are not bound to follow these but may do so by choice. Unless it becomes a binding precedent.
Define Obiter Dictum.
A judges opinion on a case, separate from the judgement. Can form a persuasive precedent.
Define Ratio Decidendi.
The reason for a decision made on a case. Can form a binding precedent.
Outline and explain the options judges have when confronted with a precedent.
Adopt it. Apply it to the case at hand.
Avoid it. Not apply it.
Affirm. State that they agree with it.
Distinguish. Show different material facts of the current case compared with the case that set the precedent.
Overrule. If a higher court they can abolish the precedent.
Disapprove. Say they don’t like it and encourage an appeal.
Reverse. Higher courts can reverse precedents on appeal.
Define statutory interpretation.
The process by which judges give meaning to words/ phrases in acts of parliament so it can be applied to a case.
Outline three reasons for statutory interpretation.
Because the act may not have taken future circumstances into account.
Because it is drafted in general terms that need to be determined to be implemented.
Because the meaning of the words used may be ambiguous and the court may need to interpret them to act on the will of the statute.
Outline three effects of statutory interpretation.
Words in disputed acts given meaning so that a dispute can be resolved.
If interpretation is made by superior court it becomes a binding precedent.
The meaning of the legislation can be restricted or expanded.
Outline two limitation and two assisting factors that affect the ability of the courts to make law.
Limitation: Judaical conservatism. A judge is unlikely to change law because their job is to interpret and enforce it not create it.
Assist: Judaical activism. A judge considers a range of social and political factors in their ruling.
Limitation: Standing. For the court to change any law, they must have a case come before them by someone who has proper standing. That is being genuinely affected by the issue.
Limitation: Stare Decisis. Only higher courts can make a change or binding precedent where no existing one applies.
Assist: Superior courts can overrule or adopt precedents of lower courts to ensure common law stays up to date with the community values.
How could the courts intervene in Parliament.
Judges can make a comment on the need for reforms in the obiter dictum.
The High court can, if the case is brought by someone with standing, declare laws made by parliament to be of no legal effect
(ultra virus).
What are three restrictions on Parliament in law making?
Jurisdictional Limitations. Parliament can only act within its power, laws could be challenged in the High Court and declared ultra virtue if outside jurisdiction.
Specific Prohibitions. S109 limits state parliaments law making ability in areas of concurrent powers. Law making powers can only be changed by S128 or the High Court.
International Political pressures. International treaties can create law making obligations that pressure Parliament to act in the interests of other countries.
Outline three factors that assist Parliament in law making.
Because bills must pass through both houses they are debated and can be amended if needed. Which allows for the most effective law possible.
Debate in each house allows each of the present political parties to voice their perspective and so create the most representative law possible.
Crossbenchers in the Parliament allow bills to become more representative as they can support or not support bills freely as they are unaffiliated with a party.
Outline three factors that limit Parliaments effectiveness in law making.
Urgent laws can be obstructed by party negotiation or not passed because of two irreconcilable ideals between parties.
If the government holds a majority in the lower house debate becomes a formality and the law is less representative because other parties are not consulted.
If the government gains a majority in the upper house the senate will become a rubber stamp, passing laws without debate and scrutiny otherwise had.
