Unit 4: AOS 2 Flashcards
rubber stamp
majority in both houses. bill doesn’t receive enough scrutiny. limit review. government planned legislation achieved.
hostile upper house
extra scrutiny to bills. obstruct government legislation program.
hung upper house
cross benchers are even a large amount of power. hold balance of power. delays in government legislation. laws represent greater variety of views.
committee system
economy and infrastructure, environment, planning, legal and social issues
factors that affect the ability of parliament to make law (4)
- the roles of the houses of parliament
- the representative nature of parliament
- political pressures
- restrictions on the law-making powers of parliament
the roles of the houses of parliament (4)
- effectiveness of upper house
- effectiveness of lower house
- law making process
- committee
the representative nature of parliament
- meaning of representative parliament
- views of majority
- regular elections
- compulsory voting
- limited time and resources
political pressures
- domestic
- internal
- international
restrictions on law making power
- jurisdictional limitations
- specific prohibitions
- law making process
role of victorian courts in law-making
developing and avoiding precedent
role of high court in law-making
precedent
statutory interpretation
reasons -mistakes in drafting the bill -broad wording -act that is not relevant to current societal values -change of nature of words effects -words given meaning -creates new precedent -extend the law (taste dam) or narrow (studded belt)
factors that affect the ability of courts to make law (5)
-doctrine of precedent
-judicial conservatism
-judicial activism
-costs and time in bringing a case to court
-the requirement for
standing
features of the relationship between courts and parliament in law-making (5)
- the supremacy of parliament
- the ability of courts to influence parliament
- the interpretation of statutes by courts
- the codification of common law
- the abrogation of common law
doctrine of precedent
where a superior court establishes a new legal principle that is binding on inferior courts in the same hierarchy in similar fact cases, in an area where no law (legislation or precedent) exists.
judicial conservatism
where a judge has the opportunity to change or extend the law, but is reluctant to do so. e.g. rape in marriage case bc marriage=consent
judicial activism
where a judge is prepared to make a change in law when a suitable dispute comes before them. e.g. Mabo case
costs and time in bringing a case to court
expensive (solicitor and barrister)
delays
e.g. studded belt case sought justice despite costs and delays
the requirement for
standing
need to be directly or sufficiently affected by the law or be in danger of being so affected.
the supremacy of parliament
aka sovereignty of parliament
make law within jurisdiction
can codify, change or abrogate
cannot override high court interpretation
the ability of courts to influence parliament
- obiter dictum
- disapproving precedent
- courts can highlight problems within the law
- lenient sentences
the interpretation of statutes by courts
- if meaning is unclear the court may need to interpret meaning
- can form precedent
- precedent created through interpretation is read out with legislation in future
- can broaden or narrow legislation
the codification of common law
turn common law into legislation
Mabo case decision was codified in the native title act 1993
the abrogation of common law
pass legislation that overrides common law
e.g. rape-marriage case crimes act 1985
legislative process
- introduction, first reading
- second reading
- committee stage (optional)
- third reading
- same procedure but in other house
- certification- clerk of parliament certifies bill
- royal assent
- proclamation- date comes into operation.
ultra vires
outside the power or jurisdiction
ratio decidendi
the reason for the decision.
creates the binding precedent
obiter dictum
by the way.
does not affect outcome of case
persuasive precedent
the decision inter partes
the outcome of the case between the parties
does not set a precedent
distinguishing precedent
where a judge making a ruling in a case finds that the material facts of the current case is significantly different from the case that set the precedent. this means that the current judge does not have to follow the previous precedent.
disapproving precedent
- where a court refuses to follow a precedent set in a court of equal standing and makes a new decision. this establishes a new precedent, and also expresses disapproval of the earlier precedent.
- Where a court expresses its disapproval of a precedent previously set by a higher court, even though it still needs to follow the precedent.
overruling precedent
where a judge in a superior court disagrees with a precedent established in an inferior court and chooses to create a new legal principle in the current case, thereby overruling the previous precedent.
reversing precedent
when a case goes to appeal and the superior court reverses or changes the decision of the inferior court.
case on precedent donohughe v Stevenson 1932 (snail in a bottle)
created law of negligence in uk
Mabo v state of QLD 1992
established native title in Australia
-mabo case decision was codified in the native title act
statutory interpretation cases
- deing v tarola 1993
- attorney general v Kevin and Jennifer and the human rights and equal opportunity commission 2003
codify
to put principles established by common law into legislation
stare decisis
to stand by what has been decided.
preamble
a clause or statement at the beginning of a statute that explains the reasons for the Act and its objectives.
extrinsic
outside actual legislation
intrinsic
within the legislation
effectiveness of the lower house
government and private members bill
conscience votes
minority governments
effectiveness of the upper house
house of review
voting along party lines
hostile upper house
law-making process
the committee system
examine the need for law reform
propose law reform
