The people, the parliament and the courts SAC4A Flashcards
4 factors which either support or hinder the ability of parliament to make laws
the roles and houses of parl
the representative nature or parl
political pressures
restrictions on lawmaking powers of parl
The roles and Houses of Parliament
- Majority govt
if a political party holds majority of seats in the LH then any bills that are proposed by govt will likely be accepted and passed.
The roles and Houses of parliament
- Majority government in both houses
if a political party holds govt in both houses, then it has the power to introduce bills and likely members of parl will vote according to party lines
meaning the bill ill be passed more efficiently, however there is a lack of debate and potential for rubber stamp to occur with errors and lack of scrutiny.
The roles and Houses of Parliament
3.Minority government
when a political party fails to secure the majority seats in LH or when both parties secure the same number of seats, this is referred to as a hung parliament
then a majority political party must seek support from members of majority political parties must seek support from members of minor political parties to form govt
this causes constant negotiation with minor parties and idea to pass bills this can result in bills being diluted
The roles and Houses of Parliament
4.A hostile senate
majority party doesn’t hold majority of seats in the UH
may face significant opposition from the senate and crossbones which can vote together to force the government to amend its original bill
The roles and Houses of Parliament
- balance of power
no single political party has majority of seeks in either one of houses, members of the cross bench may band together and vote against government bills
as a result, to win support of the minority parties and independents to get bills passed through the UH
the balance of power is independents, members from minor parties do not represent the views and values of the majority of people and yet they have a disproportionate amount of influence
more effective parliament as the govt may need to take into consideration wider views and perspectives to reflect com values
Representative nature of parliament
- Representative government
MPs have been democratically elected by their voters in order to inciporate the views and values into laws, if Mps X act then face not being relected
Representative nature of parliament
- Representative majority
although Mps should strike to uphold the views and values of their electorate doing so can leaf to supporting and passing bills that are popular rather than passing controversial laws that may be required
Representative nature of parliament
3.Democratic elections
regular elections ensure that the citizens of Australia can monitor and hold their MPS account and should they not not acting in accordance with the requirement of their people
What are political pressures
direct or indirect that exist within a political party or from sources outside of parliament, parl likely respond to these pressures
Political pressures
Domestic
infl made by indie groups from indiv or orang within parliament, this includes petitions, demonstrations, the media, social media, can face not voting for them in next election.
eg right to life Australia
Political pressures
Internal
infl within parliament, MPs may disagree w a parties bill as x align with who they represent, or conscience vote where priotise moral or ethical views or crossing the bench
Political pressures
International
outside of Australia from other countries or international organisations eg UN
incl international treaties, passing leg to uphold these eg conventions of the right of child to raise minim age of crime liability
Restrictions of parliaments lawmaking power
Jurisdictional limitations
within area or lawmaking, jurisdiction
t/f parliament can be restricted from legislating outside area of lawmaking eg in residual powers
Restrictions of parliaments lawmaking power
The legislative process
must pass bill in both houses including ,multiple stages whereby scrutinised debated and amended if needed
parl cannot bypass these stages to make a law and needs royal assent
Restrictions of parliaments lawmaking power
The Australian constitution
Division of lawmaking powers can only make law within areas of const and if acting beyond this can be challenged in HC and deemed ultra vires
Restrictions of parliaments lawmaking power
Specific prohibitions
const further imposes limits on parl
expressly banning parliaments from making laws eg states are prohibited from coinage
banning Cth on leg re express rights
not provided in s51
Restrictions of parliaments lawmaking powers
High court of Australia
HC as guardian of the constitution can declare leg ultra vires and t/f invalid, cannot be abrogated acts as limitation on parl as cannot circumvent without a referendum
when do courts make laws
when a dispute arises between parties but there is not legislation covering the matter (test case)
when a legal principle is disputer regarding the interpretation of an act
when party wants a more senior court to review the decision of error in judgment
only when sets a precedent that lower courts follow
what is common law
law made by the courts based on decisions of cases
what is the doctrine of precedent
ensures similar cases are dealt in similar ways superior courts sets a precedent that lower courts follow
precdent
reported judgment of a court that establishes a point of law
ratio decidendi
reason for decision and legal principle that the judge has used to come to their decision, only ratio decided is used in later cases
obiter dictum
comments made by judgement on question of law, doesn’t form ratio dec as persuasive precedent
the doctrine of precedent operates on what notion
stare decisis
stare decisis
rule undermines doctrine of precedent where lower courts should follow descions of higher courts in like cases
forms rules for flexibility of precedent.
binding precedent and what makes it binding
established by a higher art in similar like case, that the current judge must follow
-precedent established by higher crt is in SAME hierarchy
-case is of similar ‘like’ nature
persuasive precedent and why it is persuasive
legal prin that is not binding on current judge t/d do not have to follow
-within a diff crt heirarchy
-made by judge on same level
-the facts are not similar enough in nature
-obiter dictum statements used to influence design
4 ways precedent is flexible
RODD
reversing
overruling
disapproving
distinguishing
reversing precedent
higher crt hears a case on APPEAL and decides that the lower crt which had heard the matter at trial was incorrect and in doing so reverse the decision
overruling precedent
a case before a higher crt relies on previous precedent from a EARLIER AND DIFFERENT case by a lower case, pressing judge may believe that previous case is wrongly decided and not follow this decision, hence overrule
disapproving precedent
same level precedent as not bound may choose not to follow previous descion by earlier case then disapprove of descion, their option of law differs from earlier judge
or when inferior judges who are bound by precedent disagree with it but must follow so when handing down decision they make comment on precedent as a signal for superior courts or parl to change the law
distinguishing precedent
only bound by ‘like’ cases, when sufficiently different from previous case then not bound, if a judge is satisfied that the facts are sufficiently diff whereby would be unjust to apply earlier precedent than earlier precedent will be distinguished.
what is statutory interpretation
when judges decide on meaning and application of words and terms within an act to resolve a dispute before the court
why/ when are courts req to interpret the act\t
- the intention of the act is not clear, if parls intentions are not clear enough, eg accurate instruction and direction given to courts
-problems relating to defining words, wording may be broad but courts need to interpret if specific situation, or words may not be defined in act
-words may not cover recent changes, may b outdated and needs to be revised
how do courts interpret statues
the courts consider what parliament had in mind when making the legislation, eg what was the intent and purpose when the bill was drafted
this includes
-intrinsic from within the act eg other sections
-extrinsic from outside of act eg dictionary
what effect does statutory interpretation have on law
forming a precedent, if made by a sup crt then the ratio decided will form a binding decision by lower courts in same hierarchy
limit the scope of legislation, if courts give narrow or limited integration to words or terms the interpretation may limit the range of circumstances that the act may apply to
increase the scope of the legislation, if the courts give a broad inter to words may extend the range of circumstances
studded belt case
facts, decision and impact
man charged with an offence of possession of. regulated weapon under control of weapons act 1900 vic, as cannot carry reg weapon w/o lawful excuse, and studded belt was considered weapon
decision was in the appeal the studded belt is not considered weapon and lawful excuse of using to hold up pants
impact of narrowing the scope of legislating and parliament codified into statute
Factors affecting the courts ability to make precedent
doctrine of precedent
courts are not free to make laws in the same ways as parl. Unlike parl, the courts cannot make laws as an immediate response to com demands or when a general need is perceived
Factors affecting the courts ability to make precedent
doctrine of precedent
assisting courts lawmaking
1.stare decides ensures conistency because lower courts must follow precedent set by sup crt in same hierarchy of sim material facts
2.ensures predictability of cases parties can anticipate how law will be applied based on old cases
3.judges make law through establishing precedent and have power to expand/narrow meaning of leg
4.judges can clarify or update meaning of words
Factors affecting the courts ability to make precedent
doctrine of precedent
limiting courts lawmaking
1.if lower courts cannot distinguish, then bound to follow precedent may be outdated or unjust
2. locating, interpreting and applying precedent from previous cases is time consuming and costly
3.must wait until case before them before establishing cl
4.judges can only clarify law ex post facto, meaning problem already occurs and judges only respond to provide clarification
Factors affecting the courts ability to make precedent
judicial conservatism
judges adopt a narrow interpretation of law when applying meaning to acts of parl, they avoid controversy and leave lawmaking to parl
Factors affecting the courts ability to make precedent
judicial conservatism
assit court lawmkaing
maintains stability of law as judges are catuios and show resistant re significant changes in law
lessens possibility of appeals on question of law
allow parl whom reflect the views and values of com to make more sig changes of law
Factors affecting the courts ability to make precedent
judicial conservatism
limit court lawmaking
restricts ability of courts to make major and controversial changes in law
may discourage judges from considering a range of social and political factors
may be seen as not progressive enough nor reflect 21st century values
Factors affecting the courts ability to make precedent
judicial activism
judges consider a range of social and political factors when interpreting acts and deciding cases, more progressive as cause controversy and reflect political views of judges
Factors affecting the courts ability to make precedent
judicial conservatism
assit court lawmaking
broadly interpret statues that recognise the rights of people
judges consider a range of social and political factors and com values may be more fair judgments
more creative in designs and making sig legal change
Factors affecting the courts ability to make precedent
judicial conservatism
limit courts lawmaking
can lead to more appeals of question of law
making more radical changes which don’t always reflect com values and beyond community level of comfort
Factors affecting the courts ability to make precedent
the requirement of standing
standing is the right of a party to start a legislation in court, in order to have standing a party must be considered sufficiently connected to and have an interest in the court action g directly affected by an action, if a person doesn’t stand to loose something they don’t have standing
Factors affecting the courts ability to make precedent
the requirement of standing
assist courts lawmaking
ensures cases are only brought by people who are genuinely affected by an issue or matter, rather than waisting court time and resources
encourages ppl x directly affected by an issue or matter to seek other avenues eg MPS
Factors affecting the courts ability to make precedent
the requirement of standing
limit courts lawmaking
means ppl w general interest have no right to pursue a legal challenge on behalf of public interest or common good
potential improvements to law could have been made by listening to those w interest
Factors affecting the courts ability to make precedent
Cost and time of bringing a case to court
court is expensive, may be more reluctant to take novel cases to court due to uncertainty of the outcome, there are court fees and legal fees eg disbursement fees
decisions are not reached quickly, courts must hear all arguments by both parties and a decision takes considerable amounts of time
what is a novel case
a case concerned w particular issue of legal question that had not been decided before in a court of a superior court in same hierarchy
Factors affecting the courts ability to make precedent
Cost and time of bringing a case to court
assit courts lawmaking
can manage disputes that issues are narrowed, saving costs and allowing parties to proceed all the way to trial
high costs may mean only legitimate cases are pursued alll way to appeal
courts can make decision quickly once dispute before them
not required to follow lengthy processes like those develop eg passing bill
Factors affecting the courts ability to make precedent
Cost and time of bringing a case to court
limit courts lawmaking
HC can deter litigants who may x afford costs or LA, from pursuing a case = x ruling/ precedent devleoped
high costs may deter appeal
courts esp w established precedent can take months to hear and determine complex cases
parties may be delayed in getting a case to trial
the supermacy of parliament
they are given the primary role of lawmaking withinin the constitution
members are democratically elected
parl required to be representative of the people
parliament establishes the jurisdiction of courts
parl can pass laws that override common laws
parliament can make/changes laws at any time
however, courts can declare laws made by parl ultra vires if it deems that parl
courts ability to influence parliament
obiter statments/ ratio decidendi, courts can directly inf parliament to make/chnage the law . when handing down judgements can make comments as part of their ratio decided or obiter statements that can encourage parl to initiate changes to the law.
doctrine of precedent- parl can also be encouraged to change the law if courts are bound by previous precedent or if judges have chosen to interpret outdated statues in a conservative way
community outrage, a courts decision may cause public dissent or outrage as a result of what the community believes to be an unjust decision. due to community dissatisfaction parl may be pressured to respond in order to be representative of the community to be re-elected
stautroy interpretation as a factor relationship b/w courts and palm
judges are called to apply meaning to words and phrases in acts made by parliament to make a ruling. by giving meaning to under words and phases in statues, judges are able to clarify legislation so that they can be applied to the case at hand, but depending on the position of the court, create a precedent which allows act to be updated to reflect current views
codification and abrogation of common law
codification-
if parl agrees with ruling it can decide to bring the common law principles established by the courts into statue law. It does so by drafting ga bill and passing it within parl, and should bill be such then becomes an act, the cl principle has been codified or strengthened as a result of now being enshrined in legislation
abrogation-
if disagrees then can abrogate the common law by drafting and passing a bill that parl disregards or contravenes w common law principle. as parl is the sup lawmaking authority, the act it has created will now stand and CL abolished.
trigwell case
facts trigwell and family were severely injured as a result of another driver swerving to not hit a stray sheep that had escaped through fence
trig well wanted conmpesation, insurance company responsible as R died
HC decided to persuaded by a case in Uk where animals x have to be fenced b/c not important at the time as minimal cars
–> parliament abrogated by changing wrongs act
