U4 AOS2 The People, The Parliament, and The Courts (2)

Question 1

Special interest

Answer 1

The requirement of a party to have standing if they can demonstrate ‘special interest’ in a legal matter such as a public interest group challenging a government decision that could be public concern, or a trade union challenging a government decision that may impact their members.

Question 2

Statutory interpretation

Answer 2

Ascribing meaning to the unclear words and phrases judges can clarify legislation so it can be applied to resolve disputes before them. Judges can broaden or narrow its meaning, in doing so, the court establishes a legal principle to be followed, which together with the act of Parliament will form part of the law.

Question 3

Supremacy or of parliament

Answer 3

The final law-making power rests with parliament’s constitutional power which allows it to repeal and amend its own statutes and pass legislation overriding common law, within their jurisdiction, whenever they wish.

Question 4

Statute law

Answer 4

Law made by parliament also known as legislation or Acts or Parliament as opposed to common law.

Question 5

Stare decisis

Answer 5

Stare decisis is the doctrine that courts will adhere to precedent in making their decisions or “to stand by what has been decided” in Latin.

Question 6

Traditional media

Answer 6

Pre-internet modes of communication and circulating information such as newspapers, magazines, television, and radio.

Question 7

Test case

Answer 7

A legal action undertaken with the aim of having the court establish a legal principle or precedent that can be followed for future similar cases.

Question 8

Terms of reference

Answer 8

Instructions given to a formal body to investigate an important matter. Terms of reference set out the precise scope and purpose of the inquiry and the date by which the final report must be completed.

Question 9

Voting on party lines

Answer 9

When members of parliament who belong to a political party are generally expected to vote as one bloc and support the agenda, policy, or views in accordance with their party.

Question 10

Victorian Law Reform Commission (VLRC)

Answer 10

A formal, independent government funded law reform body whose role is to inform government of social dynamics that may impact law and may necessitate law reform through review, research and recommending potential changes to Victorian law.

Question 11

List the factors that affect the ability of parliament to make law

Answer 11

The roles of the lower and upper house based on their composition, the representative nature of government, political pressures, and the restrictions on law-making power placed on Parliament.

Question 12

How does a representative democracy impact on law-making

Answer 12

The party in government have been elected based on their promise to enact certain changes in law. As they reflect the views of the majority of the voters, the legislation they introduce will be representative of the majority of voters.

Question 13

How do regular elections, a part of the representative nature of government, impact law-making

Answer 13

Regular elections ensure the government is mindful to act in the best interests of the people or risk being voted out of office at the next election. However, in an attempt to be re-elected, members of parliament may become short-term orientated in that they introduce and support laws that are popular with voters rather than passing more controversial law that may be necessary but are unpopular with voters, in attempts or with the goal to gain votes.

Question 14

How do voting practices, a part of representative government, impact on law-making

Answer 14

Compulsory voting undermines the principle of representative government because it forces those who are not interested to cast an ill-informed vote. However, compulsory voting helps ensure our parliaments and government have the support of the majority of people and not just those who bother to vote, and therefore forces candidates to consider the needs of the entire society when formulating their policies.

Question 15

How does voters participation in law-making, a part of representative government impact law-making

Answer 15

The representative nature of government means that voters can influence law-making through undertaking activities such as forming a petition, organising a demonstration using social media or contacting their local member of parliament to indicate the need for law-reform. Therefore, the representative nature of government means that these activities can be influential in promoting law-reform.

Question 16

Domestic political pressures as a factor of political pressures, and their impact on law-making

Answer 16

Members of parliament and the government must be responsive to the needs of the people and make laws that reflect the views and values of the community. However, sometimes small but vocal minority pressure groups and powerful businesses and organizations may place excessive pressure on politicians and impede important law reform.

Question 17

Internal political pressures, as a part of political pressures, impact on law-making

Answer 17

Individual members of parliament sometimes disagree with their party’s view or policy stance on a particular issue or law reform, yet still feel compelled to vote in accordance with their party. The political pressure to vote along party lines can lead to individual members of parliament not voting in accordance with their own moral conscience or in accordance with their specific electorate or local community.

Question 18

International political pressures, as a part of political pressures’ impact on law-making

Answer 18

International disputes, crimes, biosecurity concerns, natural disaster and international trade relations can dictate the types of legislation that is or isn’t introduced. However, ratifying international treaties can restrict the parliament’s ability to pass different local laws. Moreover, international treaties can pressure governments to act more in the interest of other countries or global corporations rather than Australia.

Question 19

Jurisdiction as a restriction, and its impact on law-making

Answer 19

Parliament can only make law within its constitutional power or jurisdictional area of power.

Question 20

Section 109 as a restriction on the state parliaments, and its impact on law-making

Answer 20

While the restriction only impacts on concurrent law-making powers, and to be declared invalid the matter must be taken to the High Court. As such states may be reluctant to legislate in these areas of lawmaking powers.

Question 21

Specific prohibitions or restrictions entrenched in the Commonwealth constitution as an impact on law-making

Answer 21

The Australian Constitution also restricts the law-making powers of the state and Commonwealth Parliaments by expressly banning or prohibiting parliaments from making laws in particular areas. These include the 5 express rights protected in the Constitution. For example, s.116 outlines that the Commonwealth cannot establish a religion, impose religious observance, restrict free exercise, or impose a religious test for public office.

Question 22

Parliamentary process as a restriction, and its impact on law-making

Answer 22

The law-making process itself can be a restriction. Parliament is not always sitting which limits the time available to pass laws. For example, The debates regarding the Native Title Amendment Act 1997 (Commonwealth) took over 100 hours. This can restrict the ability of Parliament to make more laws or laws within a reasonable time frame.

Question 23

Describe the role of the courts

Answer 23

Uphold the rule of law by determining disputes between parties through judges interpreting statue and common law and applying the legal principle to the case before them. To apply existing laws made by parliament to resolve disputes, including making laws when necessary are vital in the process of law-making.

Question 24

Role of the Victorian court hierarchy

Answer 24

The Victorian court hierarchy enables the doctrine of precedent to operate as the courts are ranked according to their jurisdiction.

Question 25

When can courts make law?

Answer 25

When a case comes before them, where no law either statute or common law exists or it isn’t clear how the law may be applied, the court is a superior court of record.

Question 26

List the federal courts in order from most to least powerful according to their jurisdiction

Answer 26

The High Court of Australia, the Federal Court, The Federal Circuit Court, and the Family Court.

Question 27

List the Victorian courts in order from most to least powerful according to their jurisdiction

Answer 27

The Supreme Court separated into the Trial Division (a) and the Court of Appeal (b), The County Court, The Magistrate’s Court, and the Coroners Court.

Question 28

Which cases can be heard by the High Court

Answer 28

While the High Court is a federal court, matters from each of the state Courts of Appeal can be heard by the High Court on appeal where leave or permission has been granted.

Question 29

Binding precedent

Answer 29

A precedent that must be followed by all lower courts in the same hierarchy when the facts of the case before them are similar to the facts of the case where the precedent was first established.

Question 30

Persuasive precedent

Answer 30

Used as a guide, and a relevant source of influence for judges though they are not obliged to follow such precedents. It can be presented by barristers to judges in an attempt to persuade the court as to what the law should be.

Question 31

List all the methods used to avoid precedent

Answer 31

Disapproving, distinguishing, reversing, and overruling.

Question 32

Dissaproving

Answer 32

Judges can only show their dissatisfaction for a decision made by a higher court through their written judgement as they are in a lower court to the one the precedent was established; thus, they must follow the precedent and cannot override it, due to the precedent being binding.

Question 33

Distinguishing

Answer 33

The process by which a lower court decides that the material facts of a case are sufficiently different to that of a case in which a precedent was established by a superior court so that they are not bound to follow it, and can avoid applying the precedent.

Question 34

Reversing

Answer 34

Judges in superior courts are able to change a decision of a court lower in the hierarchy when the same case is brought to them on appeal, and the decision of the lower court is set aside. The new precedent becomes the one to follow in future cases.

Question 35

Overruling in a different and later case

Answer 35

Overruling occurs when judges from a superior court considers a lower court’s previous decision or ruling in a different and later case to be wrong, therefore the superior court can change the decision of the lower court, overruling a decision from a previous case, creating a new precedent which overrules the earlier precedent. Courts on the same level can overrule their own decisions however, this can mean two different precedents are established which can only be clarified once the matter is taken to a higher court.