U4 AOS2 The People, The Parliament, and The Courts (1)

Question 1

List the roles of lower houses (i.e., the Legislative Assembly and the House of Representatives) based on their formation

Answer 1

Formation of a majority government, and formation of a minority government.

Question 2

How does the formation of a majority government impact law-making?

Answer 2

Most of the bills introduced will be government bills and the legislation can be quickly passed through the lower house as the government has the majority of seats and members voting along party lines in support of government policies. Therefore, the laws should reflect the will of the majority of voters as they choose to put this political party in government.

Question 3

How does the lower houses role of forming a minority government impact on law-making?

Answer 3

This can hinder the development of legislation as the process is time consuming. Due to minority governments having to constantly negotiate with minority parties and the cross bench or independents to ensure its legislative program is supported or passed by the lower house. Resulting in government being forced to ‘water down’ its original policies often to the annoyance of voters. However, it can lead to law-making that better represents the views and of the people through the negotiation process.

Question 4

List the roles of the upper houses based on their compositions

Answer 4

Upper house as a rubber stamp, hostile upper parliament, and balance of power held by independents and minority parties as a result of a hostile upper house.

Question 5

Describe the upper house as a rubber stamp’s impact on law-making

Answer 5

This is advantageous as government are able to enact the law-reform they promised at an election fulfilling their role as the ‘house of review’ without amendments or time-delays. However, it can hinder the opposition’s ability to pass laws it proposes and limit the Parliament’s ability to adequately critique, amend, and improve legislation, as the upper house becomes a rubber stamp that merely confirms the decisions made by government in the lower house.

Question 6

Hostile upper parliament’s impact on law-making

Answer 6

This can limit the ability of Parliament to pass legislation as the opposition may only agree to pass legislation if large amendments are made and after considerable delay, making Parliament less effective as a the supreme law-making body.

Question 7

Balance of power held by independents and minority parties as a result of a hostile upper house’s impact on law-making

Answer 7

Due to the views of the minorities holding considerable power and oftentimes having the balance of power as they are placed in a position when they can vote with the opposition to block government bills, this may limit the ability of laws to reflect the will of the majority, and instead focus on a relatively narrow range of policy issues without having a detailed plan or stance on a broad range of key issues. However, a diverse upper house can equally be an opportunity for a more effective parliament as the government is forced to take account of a wider range of views and better reflect community interests.

Question 8

Abrogation

Answer 8

A process where Parliament passes legislation to override judge made law due to their disagreement with a legal principle developed in common law and renders it invalid. Common law i superseded by legislation.

Question 9

Adopting precedent

Answer 9

The action of a judge to follow or apply a precedent.

Question 10

Affirming precedent

Answer 10

The action of a judge to agree with the precedent.

Question 11

Avoiding precedent

Answer 11

The action of a judge to avoid applying the existing precedent.

Question 12

Broad words applied to a specific set of facts

Answer 12

Legislators generally word statutes broadly, so as to cover many situations. Therefore, words within the statute may be unclear or have multiple meanings, and a court may have to clarify the meaning of those words.

Question 13

Crossbenchers and independents

Answer 13

Independent members of parliament or members of minor parties, not members of the government or opposition, named after the seating area provided for them, called the crossbenches.

Question 14

Common law

Answer 14

Law made by judges through decisions made in cases also known as case law or judge made law as opposed to statute law.

Question 15

Codification

Answer 15

The process that involves Parliament classifying, restating and incorporating or passing legislation that incorporates common law principles.

Question 16

Doctrine of precedent

Answer 16

To ensure fairness and consistency, the common law legal rule based upon the principle of ‘stare decisis’, establishes that lower courts must follow the reasons for the decisions of the higher courts as they are binding on courts ranked lower in the same hierarchy in cases where the material facts are the same. It understands that like cases should be determined in a like manner.

Question 17

Demonstrations

Answer 17

A rally or protest that is undertaken by a large group of people to bring an issue to the attention of parliament in an attempt to prompt legislative change. To be successful they require a significant number of people and media attention.

Question 18

Ex post facto

Answer 18

‘Out of the aftermath’, a legal term used to describe a law that is established in relation to an event that has already taken place.

Question 19

Futuro

Answer 19

Parliament making laws that will apply to future events, which means they often develop law that is quite broad in an attempt to ensure it can cover a number of different scenarios.

Question 20

Hostile upper parliament

Answer 20

When the opposition holds the majority of seats in the upper house and refuses to pass legislation or only does so when there is considerable amendments.

Question 21

Hung parliament

Answer 21

A scenario in which neither major political party wins a majority of seats in the lower house of parliament after an election. Thus, the major political parties must seek support of members of minor political parties and independents to enable them to form a minority government.

Question 22

International political pressures

Answer 22

Politicians and government receiving and being influenced by political pressure from international forces such as other countries, international organisations such as the United Nations, and multinational corporations. As Australia is part of a global community, it is a signatory to a range of international treaties but has also passed legislation to formally recognize its commitments under those treaties. Being a signatory to, or having ratified, international treaties can subject the Australian Government to international political pressure if it fails to uphold the basic principles they contain.

Question 23

Judicial conservatism

Answer 23

A law-making where a judge is reluctant to develop new law as they feel that is the role of Parliament, as elected representatives to develop law resulting in a tendency to interpret the law narrowly focusing only on the case before them. Conservative judges avoid making controversial changes and establishing precedent as they develop case-specific judgements, causing judges in superior courts to apply outdated precedents even in circumstances when the court is not bound to follow the precedent.

Question 24

Judicial activism

Answer 24

A law-making approach in which judges consider a number of social, ethical and political factors in their decision making and consider that while their primary role is to resolve disputes, they undertake a secondary role in developing the common law through a progressive approach to interpret the law broadly and create new legal principles.

Question 25

Lobbying

Answer 25

The act of communicating with a public official to influence their decision-making.

Question 26

Law reform

Answer 26

The proves of constantly updating and changing the law so it remains relevant and effective.

Question 27

Locus standi

Answer 27

‘Standing in a case’ that is, the litigant must be directly affected by the issues or matters involved in the case for the court to be able to hear and determine the case.

Question 28

Media

Answer 28

Collective communication outlets or tools used to store ad deliver information.

Question 29

Methods available to avoid applying precedent

Answer 29

Applications available to judges that allow them to void applying precedent if they feel it is inappropriate or it is inapplicable to the case before them. However, the extent to which these methods are effective is dependent on the court’s position in the hierarchy. Lower courts must abide by the decisions of a higher court.

Question 30

Obiter dictum

Answer 30

A type of written reason for the judge’s decision, that are statements or comments made by the way, or by a judge that are comments made by the judge to provide context to the judgement or legal suggestions. This is the persuasive part of the judgement, that is, it doesn’t have to be followed but can provide guiding principles for judges in future cases.

Question 31

Rubber stamp government

Answer 31

When the government holds the majority of seats in the upper house it acts as a ‘rubber stamp’ merely passing and approving legislation without officially thinking about it as government policy will have support.

Question 32

Ratio decidendi

Answer 32

A type of written reason for the judge’s decision, that is the legal reasoning given by the judge in reaching their decision, which is treated as a binding part of a precedent. That is, the ratio is the principle of law that must be followed by courts lower in that same hierarchy.

Question 33

Royal commission

Answer 33

Established on behalf of the queen by her representatives at a federal and state level involving the Governor, and Governor-General. The highest form of inquiry and they investigate a particular issue through consultation with experts and the community by seeking submissions and holding hearings in which they develop a final report of recommendations of law reform which is tabled at parliament.

Question 34

Social media

Answer 34

Digital tools and applications that disseminate information and allow people to connect virtually, such as Instagram, Facebook or Twitter.

Question 35

Standing

Answer 35

The ability of a party to appear before and be heard by a court based upon ‘locus standi’ meaning ‘place to stand’ in which a party must show that they are an aggrieved party and that their private rights have been directly affected by a legal issue or the action of another party and the infringement would continue unless the court provides a relief.