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Legal Studies > Unit 4: AOS 2 > Flashcards

Unit 4: AOS 2 Flashcards

1
Q

rubber stamp

A

majority in both houses. bill doesn’t receive enough scrutiny. limit review. government planned legislation achieved.

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2
Q

hostile upper house

A

extra scrutiny to bills. obstruct government legislation program.

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3
Q

hung upper house

A

cross benchers are even a large amount of power. hold balance of power. delays in government legislation. laws represent greater variety of views.

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4
Q

committee system

A

economy and infrastructure, environment, planning, legal and social issues

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5
Q

factors that affect the ability of parliament to make law (4)

A
  • the roles of the houses of parliament
  • the representative nature of parliament
  • political pressures
  • restrictions on the law-making powers of parliament
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6
Q

the roles of the houses of parliament (4)

A
  • effectiveness of upper house
  • effectiveness of lower house
  • law making process
  • committee
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7
Q

the representative nature of parliament

A
  • meaning of representative parliament
  • views of majority
  • regular elections
  • compulsory voting
  • limited time and resources
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8
Q

political pressures

A
  • domestic
  • internal
  • international
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9
Q

restrictions on law making power

A
  • jurisdictional limitations
  • specific prohibitions
  • law making process
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10
Q

role of victorian courts in law-making

A

developing and avoiding precedent

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11
Q

role of high court in law-making

A

precedent

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12
Q

statutory interpretation

A 
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)
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13
Q

factors that affect the ability of courts to make law (5)

A

-doctrine of precedent
-judicial conservatism
-judicial activism
-costs and time in bringing a case to court
-the requirement for
standing

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14
Q

features of the relationship between courts and parliament in law-making (5)

A
  • 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
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15
Q

doctrine of precedent

A

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.

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16
Q

judicial conservatism

A

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

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17
Q

judicial activism

A

where a judge is prepared to make a change in law when a suitable dispute comes before them. e.g. Mabo case

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18
Q

costs and time in bringing a case to court

A

expensive (solicitor and barrister)
delays
e.g. studded belt case sought justice despite costs and delays

19
Q

the requirement for

standing

A

need to be directly or sufficiently affected by the law or be in danger of being so affected.

20
Q

the supremacy of parliament

A

aka sovereignty of parliament
make law within jurisdiction
can codify, change or abrogate
cannot override high court interpretation

21
Q

the ability of courts to influence parliament

A
  • obiter dictum
  • disapproving precedent
  • courts can highlight problems within the law
  • lenient sentences
22
Q

the interpretation of statutes by courts

A
  • 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
23
Q

the codification of common law

A

turn common law into legislation

Mabo case decision was codified in the native title act 1993

24
Q

the abrogation of common law

A

pass legislation that overrides common law

e.g. rape-marriage case crimes act 1985

25
Q

legislative process

A
  • 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.
26
Q

ultra vires

A

outside the power or jurisdiction

27
Q

ratio decidendi

A

the reason for the decision.

creates the binding precedent

28
Q

obiter dictum

A

by the way.
does not affect outcome of case
persuasive precedent

29
Q

the decision inter partes

A

the outcome of the case between the parties

does not set a precedent

30
Q

distinguishing precedent

A

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.

31
Q

disapproving precedent

A
  1. 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.
  2. Where a court expresses its disapproval of a precedent previously set by a higher court, even though it still needs to follow the precedent.
32
Q

overruling precedent

A

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.

33
Q

reversing precedent

A

when a case goes to appeal and the superior court reverses or changes the decision of the inferior court.

34
Q

case on precedent donohughe v Stevenson 1932 (snail in a bottle)

A

created law of negligence in uk

35
Q

Mabo v state of QLD 1992

A

established native title in Australia

-mabo case decision was codified in the native title act

36
Q

statutory interpretation cases

A
  • deing v tarola 1993

- attorney general v Kevin and Jennifer and the human rights and equal opportunity commission 2003

37
Q

codify

A

to put principles established by common law into legislation

38
Q

stare decisis

A

to stand by what has been decided.

39
Q

preamble

A

a clause or statement at the beginning of a statute that explains the reasons for the Act and its objectives.

40
Q

extrinsic

A

outside actual legislation

41
Q

intrinsic

A

within the legislation

42
Q

effectiveness of the lower house

A

government and private members bill
conscience votes
minority governments

43
Q

effectiveness of the upper house

A

house of review
voting along party lines
hostile upper house

44
Q

law-making process

A

the committee system
examine the need for law reform
propose law reform

Legal Studies (5 decks)

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