U4: AOS2 (People + Parliaments/Courts)

Question 1

How do the roles of the houses of parliament affect the ability of parliament in law-making?

Answer 1

• Majority gov = biased law-making
• Minority gov = consistent law-making
• Law-making process = 2-house system is slow, takes a while to pass legislation
• Committee System (law reform commissions) = laws are relevant/modern

Question 2

How does the representative nature of parliament affect the ability of parliament in law-making?

Answer 2

• Must legislate in the interests of the people, not political agenda
• Regular elections ensure ministers are elected to satisfy the wants of the people
• Enables individuals to pressure law reform (petitions, demonstrations)

Question 3

How do political pressures affect the ability of parliament in law-making?

Answer 3

• Internal/external/international pressures may force premature action
• May prevent current bills from being passed
• May be pressured by businesses/groups = biased legislating
• May vote ‘along party lines’ = just voting with party policy

Question 4

How do restrictions on the law-making powers of parliament affect the ability of parliament in law-making?

Answer 4

• Can not discriminate based on sex/religion/residence
• Separate powers (residual, exclusive)
• Commonwealth usually dominates over state parliaments
• Ensures parliaments can not abuse power

Question 5

What are the roles of the Victorian Courts in law-making?

Answer 5

• Deal with Summary + Indictable offences
• Provide appeals
• Develop precedent/common law (ratio decedendi, obiter dictum, stare decisis)

Question 6

What are the roles of the High Court in law-making?

Answer 6

• Hear disputes concerning the Constitution/federal law
• Amend/validate questioned laws
• Provide appeals

Question 7

1) What is Statutory Interpretation?
2) What are the reasons for Statutory Interpretation?
3) What are the effects of Statutory Interpretation?

Answer 7

1) Process whereby a judge analyses a previous statue and applies a modern and valid meaning to it.

2)

• Changing nature of words (words could have different meaning in a modern setting)
• Ambiguous wording (not precise, vague meaning)
• Future circumstances (aspects of society might have changed, technology)

3)

• Establishes precedent (development of law)
• Interpretation may also be broad (may encompass too many areas after interpretation)
• Interpretation may also be narrow (restricts ability for statue to legislate)

Question 8

1) What is the doctrine of precedent?

2) How does it affect the abilities of courts to make laws?

Answer 8

1) The idea that judges must adhere to previous precedent made by judges in higher courts.

2)
- Judges can only make new laws if there is a test case
- Only higher courts can make precedents for which lower courts are bound
- Judges are forced to adhere to higher precedent, may compromise consistency of law

Question 9

1) What is Judicial Conservatism?

2) How does it affect the abilities of courts to make laws?

Answer 9

1) Approach whereby judges narrowly interpret law, avoiding establishing precedent and therein not developing the law.

2)

• Halts development of common law
• Lack of validity in modern setting
• Lack of consistency
• Safer approach to legislating (upholds previous laws)

Question 10

1) What is Judicial Activism?

2) How does it affect the abilities of courts to make laws?

Answer 10

1) Approach whereby judges take a more progressive stance to law-making, taking initiative to establish precedent and develop the law.

2)

• Progresses development of common law
• Validity in modern setting
• Consistency in law
• Can be controversial (can cause public dissatisfaction)

Question 11

How does cost and time in bringing a case to court affect the abilities of courts to make laws?

Answer 11

• Less people pursuing cases and defending their rights
• Less test cases/less opportunity to develop common law
• Halts administration of justice

Question 12

How does the requirement for standing affect the abilities of courts to make laws?

Answer 12

• Person bringing case must be affected = increases legitimacy of case, administration of justice is warranted
• Prevents people who have not been affected from bringing about case = saves time and reduces delays

Question 13

In reference to the relationship between parliament and the courts, explain the supremacy of parliament

Answer 13

Parliament is the ultimate law-making body and therefore has the authority to overrule any law-making bodies, such as the courts

Question 14

In reference to the relationship between parliament and the courts, explain the ability of courts to influence parliament

Answer 14

Through ratio decedendi and obiter dictum, courts can give parliament feedback on the applicability and relevance of legislation

Question 15

In reference to the relationship between parliament and the courts, explain the interpretation of statues by courts

Answer 15

Courts can interpret statues to correct inconsistencies and therefore fill gaps in the law. This improves the applicability, relevance and accessibility of laws.

Question 16

In reference to the relationship between parliament and the courts, explain the codification of common law

Answer 16

Parliament can pass legislation that incorporates common law principles, therefore working interchangeably with the courts (eg. Native Title Act 1993)

Question 17

In reference to the relationship between parliament and the courts, explain the abrogation of common law

Answer 17

At any time, parliament can override/invalidate common law, therefore proving their supremacy as the ultimate law-making body

Question 18

What are the 4 ways of avoiding precedent?

Answer 18

1) Reversing: Higher judge changes wrong decision of lower judge
2) Overruling: Higher judge ignores/changes lower judge precedent
3) Distinguishing: Judge decides facts of case are different from precedent and therefore it is invalid
4) Disapproving: Judge decides not to follow precedent made by same level judge, demonstrating their disapproval